Rivera (Migration) - [2024] AATA 2990

Rivera (Migration) [2024] AATA 2990 (14 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ofelia Gonzales Rivera
REPRESENTATIVE:  Mr Gareth John Lewis
CASE NUMBER:  2011940
HOME AFFAIRS REFERENCE(S):          CLF2018/178573
MEMBER:Margie Bourke
DATE:14 August 2024
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 and cl.838.221 of Schedule 2 to the Regulations.

Statement made on 14 August 2024 at 12:29pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – Philippines Negative Certification of Birth – statutory declarations by family members – applicant granted a dependent temporary visa – substantial reliance – reasonable period – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 838.111, 838.212, 838.221; 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 7 July 2020 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 17 July 2018. 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 which requires the visa applicant is an aged dependent relative of an Australian relative at the time of application, and cl.838.221 which requires the visa applicant continues to be an aged dependent relative of an Australian relative at the time of decision.
The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied the applicant met the definition of aged dependent relative, as defined in reg 1.03, at the time of application.
The Tribunal has considered the information provided to the Department and the matters in the Department’s decision record dated 7 July 2020. The Tribunal has considered the information provided to it. The Tribunal is satisfied that it can make a decision favourable to the review applicant based on the information available to it, without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.
The applicant was represented in…

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 Rivera (Migration)

Details

AGLC: Rivera (Migration) [2024] AATA 2990
Case: [2024] AATA 2990
Decision Date: 14 August 2024

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 to establish that they were an aged dependent relative of an Australian permanent resident, who was their niece. The core of the dispute revolved around the applicant's ability to prove their familial relationship and their status as an aged dependent relative, particularly in light of difficulties obtaining official birth documentation from the Philippines. The decision was made by Margie Bourke, a Senior Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant was a "relative" within the meaning of the Migration Regulations, and whether the applicant met the definition of an "aged dependent relative" of an Australian relative. This definition requires the applicant to be a relative, not have a spouse or de facto partner, have been dependent on the Australian relative for a reasonable period and remain so dependent, and be old enough to be granted an age pension. The Tribunal was specifically required to consider the applicant's ability to prove their relationship to the sponsor, given the absence of a registered birth certificate and the country information regarding birth registration practices in the Philippines for individuals born before 1945.

The Tribunal reasoned that the applicant, born in 1937, was unable to obtain a registered birth certificate due to the limitations of the Philippine Statistics Authority's records, which only commenced from 1945. The Tribunal accepted that the applicant's inability to provide an affidavit from a living witness to her birth was a consequence of her age and the historical record-keeping practices. Consequently, the Tribunal was satisfied that the applicant had provided sufficient evidence, including statutory declarations and country information, to establish that she was a relative of the Australian permanent resident. The Tribunal also found that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations.

Given these findings, the Tribunal remitted the application for the Subclass 838 visa back to the Department for reconsideration, with the direction that the applicant met the criteria relating to being a relative and the dependency requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The following are the written reasons that the Tribunal has concluded the matter should be remitted back to the Department for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of Jovy Aura Alejandro Carpio, 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 is Jovy Aura Alejandro Carpio is an Australian permanent resident and is the applicant’s niece.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). Reg 1.03 defined aged dependent relative in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen means a relative who: (a) does not have a spouse or de facto partner; and (b) has been dependent on that person for a reasonable period, and remained so dependent; and (c) is old enough to be granted an age pension under the Social Security Act 1991.Is the applicant a relative of the sponsor? The delegate recorded in the Department’s decision record that the Department was not satisfied that the applicant was the aunt of the claimed Australian relative. I have considered the information provided and I am satisfied that the applicant was born in 1937 and her birth was not registered. I am satisfied based on the statutory declaration of the applicant that she is unable to provide an affidavit from a living witness to her birth in 1937 in order to obtain a late registration of her birth. I have considered the country information provided by the applicant from the Philippine Statistics Authority which advises that the authority cannot provide a birth certificate for a person born before 1945 as civil registry records in the electronic and paper archives cover births, marriages and deaths that occurred starting in 1945. I am satisfied that the civil registry records for births prior to 1945 issue a document described as a negative birth certificate in circumstances where a person’s birth was not registered and they are unable to provide a living witness to the birth.

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 and cl.838.221 of Schedule 2 to the Regulations.Margie BourkeSenior Member

Ratio Decidendi

Legal Principle Established

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