Ngo (Migration) - [2021] AATA 3863

Ngo (Migration) [2021] AATA 3863 (22 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Ha Thu Thi Ngo
VISA APPLICANT:  Ms Kim Loan Huynh
CASE NUMBER:  1821878
HOME AFFAIRS REFERENCE(S):          2013027044 OSF2013/027044
MEMBER:M. Edgoose
DATE:22 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:
·cl 114.211 of Schedule 2 to the Regulations; and
·cl 114.221 of Schedule 2 to the Regulations.

Statement made on 22 September 2021 at 1:37pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – aged dependent relative of an Australian relative – wholly or substantially reliant for financial support – evidence of money transfers – greater reliance than on any other person – age requirement – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 114.211, 114.221; rr 1.03, 1.05
Social Security Act 1991
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 10 July 2018 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 29 May 2013. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires the primary visa applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 114 visa are set out in Part 114 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 114.211.
The delegate refused to grant the visa on the basis that cl 114.211 was not met.
The review applicant was represented in relation to the review by her representative.
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 visa applicant is the aged dependent of Ms Ha Thu Thi Ngo, who the visa 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 Ha Thu Thi Ngo is an Australian citizen and is the visa applicant’s daughter.
Is the visa applicant an aged dependent relative of an…

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 Ngo (Migration)

Details

AGLC: Ngo (Migration) [2021] AATA 3863
Case: [2021] AATA 3863
Decision Date: 22 September 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 114 (Aged Dependent Relative), made by a visa applicant who claimed to be the aged dependent relative of Ms Ha Thu Thi Ngo, an Australian citizen and the applicant's daughter. The dispute before the Tribunal was whether the visa applicant met the criteria for this visa subclass.

The primary legal issues before the Tribunal were whether the visa applicant qualified as an "aged dependent relative" of an Australian relative. This required determining if the applicant was a "relative" as defined, did not have a spouse or de facto partner, had been dependent on the Australian relative for a reasonable period and remained so dependent, and met the age requirement for an aged pension. Specifically, the Tribunal had to assess the applicant's financial dependence on Ms Ngo, considering whether the applicant was wholly or substantially reliant on Ms Ngo for financial support for basic needs and whether this reliance was greater than reliance on any other person or source.

The Tribunal found that the visa applicant met the criteria of being a "relative" and that subparagraph (a) of the definition of "aged dependent relative" was met as the applicant's spouse had passed away. The Tribunal also considered the definition of "dependent" under regulation 1.05A, which requires the applicant to be wholly or substantially reliant on the relative for financial support for basic needs, and for this reliance to be greater than reliance on any other person or source. While the applicant provided evidence of money transfers from Ms Ngo, the Tribunal noted inconsistencies in the amounts stated across different interviews, suggesting a need for further consideration of the extent and nature of this reliance.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria under cl 114.211 and cl 114.221 of Schedule 2 to the Regulations.

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 visa applicant is the aged dependent of Ms Ha Thu Thi Ngo, who the visa 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 Ha Thu Thi Ngo is an Australian citizen and is the visa applicant’s daughter. Is the visa applicant an aged dependent relative of an Australian relative? To be granted a Subclass 114 visa the visa 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 114.211 and cl 114.221. ‘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 visa applicant is the ‘relative’ of an Australian relative for the purposes of cl 114.211. Does the visa applicant have a spouse or de facto partner? The visa applicant was married to Mr Van Kiem Ngo who passed away on 3 September 2005 according to the death certificate supplied to the Tribunal. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and the time of decision.Is the visa 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). For the purposes of this application, reference to a ‘substantial period’ in reg 1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. Further, the proper construction of ‘dependent’ in reg 1.05A does not carry any implication of the notion of necessity or lack of choice reg 1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43]. According to the delegates decision the visa applicant claimed that she is dependent on the review applicant. At an interview conducted on 29 July 2014 the visa applicant claimed that the review applicant provides her with AUD200 every month or AUD300 every 2 months. The visa applicant claimed at a difference interview conducted on 14 August 2013 that the review applicant gives her AUD100 – 200 every month or every two months which equates to a maximum of AUD2,400 per year.

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 114 visa.DECISION The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:·cl 114.211 of Schedule 2 to the Regulations; and ·cl 114.221 of Schedule 2 to the Regulations.M. EdgooseMember

Ratio Decidendi

Legal Principle Established

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