Li (Migration) - [2021] AATA 3806

Li (Migration) [2021] AATA 3806 (28 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Fenghua Li
CASE NUMBER:  1832687
HOME AFFAIRS REFERENCE(S):          CLF2017/46823
MEMBER:M. Edgoose
DATE:28 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:
·cl 838.212 of Schedule 2 to the Regulations; and
·cl 838.221 of Schedule 2 to the Regulations.

Statement made on 28 September 2021 at 12:37pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependency – evidence and submissions about sponsor’s financial support of applicant – residing with sponsor for 4 years – physical and mental health – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), Schedule 2, cls 838.212, 838.221
CASES
Huang v MIMIA [2007] FMCA 720
Huynh v MIMIA (2006) 152 FCR 576
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 October 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 June 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 838.212.
The delegate refused to grant the visa on the basis that cl 838.212 was not met.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the aged dependent relative of Ms Ming Li, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).
In this case Ms Ming Li is a permanent resident and is the applicant’s daughter.
Is the applicant an aged dependent relative of an Australian relative?
To be granted a Subclass 838 visa the applicant must be a ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Li (Migration)

Details

AGLC: Li (Migration) [2021] AATA 3806
Case: [2021] AATA 3806
Decision Date: 28 September 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant sought this visa on the basis that they were the aged dependent relative of Ms Ming Li, who was an Australian permanent resident and the applicant's daughter. The decision under review was made by a delegate, and the case was brought before the Tribunal for reconsideration.

The primary legal issues before the Tribunal were whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994 (Cth). This required the Tribunal to determine if the applicant was a "relative" of Ms Li, if they had a spouse or de facto partner at the time of application, and crucially, if they had been dependent on Ms Li for a reasonable period and remained so dependent. The definition of "dependent" under regulation 1.05A(1) was also central, requiring assessment of the applicant's reliance on Ms Li for financial support for basic needs, and whether this reliance was greater than any other source of support, or due to loss of bodily or mental functions.

The Tribunal found that the applicant was a "relative" of Ms Li and, based on a notarised death certificate, was widowed at the time of application, thus satisfying that limb of the definition. However, the Tribunal did not make a definitive finding on the dependency criterion. While the applicant had resided with Ms Li for four years and presented evidence of physical and mental health issues, the Tribunal concluded that further consideration of the evidence and submissions regarding the applicant's financial reliance on Ms Li was necessary. Consequently, the Tribunal determined that the matter should be remitted for reconsideration by the Minister.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of Ms Ming Li, who the applicant claims is their relative. Relative is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). In this case Ms Ming Li is a permanent resident and is the applicant’s daughter. Is the applicant an aged dependent relative of an Australian relative? To be granted a Subclass 838 visa the applicant must be a ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl 838.212, cl 838.221 and cl 838.111. ‘Aged dependent relative’ is defined in reg 1.03 of the Regulations. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of reg 1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the Social Security Act 1991 (Cth). In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212. Does the applicant have a spouse or de facto partner? The Tribunal is satisfied the applicant has been married according to the delegate’s decision and submissions to the Tribunal. On 23 May 2018 the Department wrote to the applicant requesting evidence of the death certificate of the applicant’s spouse. At time of the delegate reaching its decision no evidence of the applicant’s claim of being a widow had been submitted. On 15 March 2018, the applicant provided the Tribunal with a certified translated Notarial Death Certificate of Guongliang Li, the applicant’s late spouse. The certificate states that Mr Li was born on December 3, 1936 and died of disease on September 11, 2016. The certificate was notarised by the Zhuji Municipal Notary Public Office in Zhejiang Province on June 8, 2018. Given the evidence, the Tribunal is satisfied that the applicant is widowed, and was widowed at the time that the visa application was made. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application. Is the applicant dependent on the Australian relative? The definition of ‘dependent’ as it applies to this application is set out in reg 1.05A(1) of the Regulations. Generally speaking, an applicant will be dependent on their relative, if at the relevant time the applicant was wholly or substantially reliant on their relative for financial support to meet their basic needs for food, clothing and shelter; and their reliance on their relative was greater than their reliance on any other person or source of support. An applicant may also meet the requirements where their reliance on their relative is due to the total or partial loss of their bodily or mental functions: reg 1.05A(1).

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 838 visa.DECISION The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:· cl 838.212 of Schedule 2 to the Regulations; and· cl 838.221 of Schedule 2 to the Regulations.M. EdgooseMember

Ratio Decidendi

Legal Principle Established

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