Phan (Migration)

[2020] AATA 5330

Phan (Migration) [2020] AATA 5330 (12 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Hoa Phan

VISA APPLICANT:  Mrs Thi Xa Nguyen

CASE NUMBER:  1927736

DIBP REFERENCE(S):  OSF2010/069525

MEMBER:Kira Raif

DATE:12 October 2020

PLACE OF DECISION:  Sydney

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 12 October 2020 at 10:39am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – aged dependant relative of an Australian relative – wholly or substantially reliant – age requirement – sponsor visits his mother in Vietnam – visa applicant residing in sponsor’s house – medical issues – evidence of money transfers – decision under review remitted   

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, rr 1.03, 1.05; cls 114.211, 114.221
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 August 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).

2. The visa applicant was born in January 1933. She applied for the visa on 19 April 2010. The delegate refused to grant the visa on the basis that cl.114.221 was not met because the delegate was not satisfied the visa applicant was an aged dependant relative of her Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The review applicant appeared before the Tribunal on 13 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer).…