Van der Zanden (Migration) - [2022] AATA 536

Van der Zanden (Migration) [2022] AATA 536 (22 February 2022)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Theodorus Johannes Maria Van der Zanden
CASE NUMBER:  2013094
HOME AFFAIRS REFERENCE(S):          CLF2018/355236
MEMBER:SM Justin Owen
DATE:22 February 2022
PLACE OF DECISION:  Sydney
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
·cl.838.221 of Schedule 2 to the Regulations

Statement made on 22 February 2022 at 9:56am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – substantial period of dependency – separation from previous partners – no entitlement to welfare in the Netherlands – visa applicant’s personal budget record – caravan situated in the sponsor’s yard – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
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
Vo v Minister for Home Affairs [2019] FCAFC 108
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 4 August 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 4 October 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.
The delegate refused to grant the visa on the basis that cl 838.212 was not met because the delegate was not satisfied in the three-year period prior to his application that the applicant was wholly or substantially reliant on his son the sponsor to meet his basic needs for food, clothing and shelter.
The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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…

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 Van der Zanden (Migration)

Details

AGLC: Van der Zanden (Migration) [2022] AATA 536
Case: [2022] AATA 536
Decision Date: 22 February 2022

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, a 76-year-old Dutch national, sought the visa on the basis that he was the aged dependent relative of his son, Mr Bo Van der Zanden, an Australian permanent resident. The Tribunal was required to determine whether the applicant met the criteria for the visa, particularly concerning his relationship to the sponsor and his dependency.

The primary legal issues before the Tribunal were whether the applicant qualified as an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This involved assessing whether the applicant was a "relative" of an Australian permanent resident, whether he had a spouse or de facto partner, whether he had been dependent on the Australian relative for a substantial period and remained so dependent, and whether he was of an age to be granted an aged pension. The Tribunal also considered whether the applicant had made a valid application for a Carer visa, which he had not.

The Tribunal found that the applicant was indeed the father of the sponsor, Mr Bo Van der Zanden, who was an Australian permanent resident, thus satisfying the "relative" criterion. The Tribunal also noted the applicant's evidence of divorce from previous partners and a statutory declaration regarding the conclusion of a de facto relationship, suggesting he did not have a current spouse or de facto partner. However, the delegate had not been satisfied on this point. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 838.212 and 838.221 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 applicant at the time of decision is a 76-year old Dutch national. The visa application was made on the basis that the applicant is the aged dependent relative of Mr Bo Van der Zanden, 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 Mr Bo Van der Zanden is an Australian permanent resident and is the applicant’s son. The applicant does not meet the requirements for the grant of the Remaining Relative visa: he stated he has other children residing in South Africa and The Netherlands. The applicant does not claim to be a carer and the application was not accompanied by the relevant Carer certificate. The Tribunal finds that the applicant had not made a valid application for a Carer visa.Is the applicant an aged dependent relative of an Australian relative? To be granted a Subclass 838 visa the applicant must be an ‘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). The Tribunal notes the applicant has previously provided the delegate with a range of personal information pertaining to the sponsor Mr Bo Van der Zanden including his South African Birth Certificate dated 3 April 1989 that lists the applicant as his father, and the Department’s internal documentation supplied that notes Mr Bo Van der Zanden is an Australian permanent resident. The Tribunal is satisfied on the evidence before it that the applicant is the father of the sponsor, an Australian permanent resident. The Tribunal is satisfied that the sponsor is the son of the applicant. In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212 and cl 838.221. Does the applicant have a spouse or de facto partner? The Tribunal notes that the delegate was not satisfied that the applicant did not have a spouse or de facto partner, and subsequently did not meet the requirements of reg 1.03(a). The Tribunal notes the documentation the applicant submitted as to his divorce with Mrs Wendy Ann Van der Zanden in 1973 and Ms Bridget Leigh Van der Zanden in 1984. The applicant has also provided a statutory declaration dated 29 September 2018 which stated he had been in a de facto relationship with Ms Anne Marie Naude between 1984 and September 2009 when the relationship concluded.

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.· cl 838.221 of Schedule 2 to the Regulations.Justin OwenSenior Member

Ratio Decidendi

Legal Principle Established

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