Luo (Migration) - [2020] AATA 2854

Luo (Migration) [2020] AATA 2854 (9 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Ms Yong Luo

VISA APPLICANT:  Mr Taihou Luo
CASE NUMBER:  1912998
DIBP REFERENCE(S):  OSF2016/073469
MEMBER:Kira Raif
DATE:9 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 09 July 2020 at 10:56am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependant Relative) – dependant on Australian relative for reasonable period – visa applicant previously dependant on review applicant’s brother, who has migrated to Australia – brother returns to home country twice a year to care for visa applicant – visa applicant living in own property and receiving pension – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), 1.15, Schedule 2, cll 114.211, 114.221
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 Immigration on 16 May 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a national of China, born in July 1929. He applied for the visa on 27 October 2014. The delegate refused to grant the visa on the basis that cl.114.211 was not met because the delegate was not satisfied the applicant was an aged dependent relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
On 22 June 2020 the Tribunal wrote to the review applicant and invited her to appear before the Tribunal on 9 July 2020 to give evidence and present arguments. On 1 July the review applicant requested, through her representative, that the hearing be postponed to allow for the preparation of further evidence. The Tribunal has considered the request but decided not to postpone the hearing. Firstly, the applicant was given the prescribed period of notice of the hearing and the fact that there is a prescribed period may suggest that the legislation considers such period to be sufficient to prepare the necessary evidence. Secondly, the application was lodged with the Tribunal in May 2019, more than 12 months prior to the hearing and the applicant has not explained why that was insufficient time to gather the evidence, given that the relevant issues have been clearly identified in the primary decision and the applicant is ably represented by a registered migration agent. Thirdly, and most importantly, the applicant failed to specify what evidence is being prepared and why such evidence cannot be prepared prior to the scheduled hearing. The request simply refers to the gathering of evidence. There is no explanation why such evidence cannot be made available prior to the scheduled hearing but would…

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.

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Details

AGLC: Luo (Migration) [2020] AATA 2854
Case: [2020] AATA 2854
Decision Date: 9 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by a visa applicant for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 114 (Aged Dependant Relative) visa. The applicant sought to migrate to Australia based on dependency on an Australian relative. The decision under review affirmed the refusal of this visa.

The primary legal issue before the Tribunal was whether the visa applicant met the prescribed criteria for a Subclass 114 visa, particularly the requirement of being dependent on an Australian relative for a reasonable period. The Tribunal also considered whether the applicant met the criteria for any other visa subclasses.

The Tribunal found that the visa applicant did not meet the criteria for the Subclass 114 visa. While the applicant's brother, who had migrated to Australia, visited the applicant's home country twice a year to provide care, the applicant was living in her own property and receiving a pension. These circumstances did not establish the requisite dependency on the Australian relative for a reasonable period. Furthermore, the Tribunal found no material to suggest the applicant met the criteria for any other visa subclasses. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the visa applicant does not meet the criteria for a Subclass 114 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. decisionDECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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