Van Rooyen (Migration) - [2021] AATA 3406

Van Rooyen (Migration) [2021] AATA 3406 (20 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Emily Alice Elizabeth Van Rooyen
CASE NUMBER:  1827661
HOME AFFAIRS REFERENCE(S):          CLF2017/21600
MEMBER:SM Justin Owen
DATE:20 August 2021
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; and
·cl.838.221 of Schedule 2 to the Regulations.

Statement made on 20 August 2021 at 1:56pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – Aged Dependent Relative – wholly or substantially reliant – substantial period – earlier money transfers – applicant ineligible for South African pension – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05; Schedule 2 cls 838.111, 838.212, 838.221
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 Home Affairs on 3 September 2018 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 is a 72-year old widow from the Republic of South Africa. The applicant’s husband died in 2010 and she has never re-partnered. The applicant’s daughter, Mrs Delia Reincke, has sought to sponsor her mother to come and live out her remaining years with her, her husband, and children in Australia, on an Aged Dependent Relative visa.
The applicant applied for the visa on 13 March 2017. 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 that the applicant met the requirements of an Aged Dependent Relative as defined in Regulation 1.03.
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,…

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 Rooyen (Migration)

Details

AGLC: Van Rooyen (Migration) [2021] AATA 3406
Case: [2021] AATA 3406
Decision Date: 20 August 2021

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 Mrs Delia Reincke, an Australian citizen and the applicant's daughter. The applicant did not claim to be a carer and had not made a valid application for a Carer visa. The decision was made by Senior Member Justin Owen of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant was a "relative" of an Australian relative, if they had no spouse or de facto partner, if they had been dependent on the Australian relative for a substantial period and remained so dependent, and if they were old enough to be granted an aged pension under the Social Security Act 1991.

The Tribunal found that the applicant was the mother of the sponsor, an Australian citizen, and therefore met the definition of a "relative" for the purposes of the visa criteria. The Tribunal also accepted evidence that the applicant's husband had died and that she had remained single since that time, thus satisfying the criterion of not having a spouse or de facto partner. However, the Tribunal did not make findings on the remaining criteria, specifically whether the applicant had been wholly or substantially reliant on the Australian relative for a substantial period and continued to be so reliant, nor whether the applicant was old enough to be granted an aged pension.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant met the criteria under cl 838.212 and cl 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 visa application was made on the basis that the applicant is the aged dependent relative of Mrs Delia Reincke, 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 Mrs Delia Reincke is an Australian citizen and is the applicant’s daughter. The applicant does not meet the requirements for the grant of the Remaining Relative visa. 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 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). The Tribunal is satisfied on the evidence before it that the applicant is the mother of the sponsor, an Australian citizen. A certified copy of the sponsor’s Certificate of Australian Citizenship, indicating the sponsor became an Australian citizen on 26 February 2004 (D1, Folio. 81) is before the Tribunal. The Tribunal has before it a certified copy of the sponsor’s South African birth certificate listing the applicant as her mother (D1, Folio. 84). 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 applicant was married to Mr Ronald Anthony Van Rooyen on 8 December 1967 in Durban, Natal Province, the Republic of South Africa. Certified copies of South African Marriage Certificates were provided to the delegate confirming this (D1, Folios.94 and 96). The applicant’s husband died on 29 April 2010. The applicant provided the delegate with a copy of her husband’s Death Certificate (D1, Folio.89) and a copy of the handwritten Notification/Register of Death provided to the South African Department of Home Affairs on 30 April 2010. The applicant has not remarried. The applicant has provided evidence that she has remained single since she was widowed 11 years ago. The Tribunal accepts the applicant’s statement.

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

Ratio Decidendi

Legal Principle Established

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