Victor (Migration) - [2021] AATA 3771

Victor (Migration) [2021] AATA 3771 (29 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Sarala Victor
CASE NUMBER:  1901435
HOME AFFAIRS REFERENCE(S):          CLF2017/61109
MEMBER:M. Edgoose
DATE:29 September 2021
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 of Schedule 2 to the Regulations; and
·cl 838.221 of Schedule 2 to the Regulations.

Statement made on 29 September 2021 at 10:32am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – dependency – four other children in home country unable to provide support – evidence and submissions provided about review applicant’s financial support – reliance on review applicant more than any other person – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(a), Schedule 2, cls 838.111, 838.212, 838.221
Social Security Act 1991 (Cth)
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 January 2019 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 29 August 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.
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 Ms Manjula Prema Kumari Victor, 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 Ms Manjula Prema Kumari Victor is an Australian citizen and is the applicant’s daughter.
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…

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 Victor (Migration)

Details

AGLC: Victor (Migration) [2021] AATA 3771
Case: [2021] AATA 3771
Decision Date: 29 September 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 this visa on the basis that they were an aged dependent relative of Ms Manjula Prema Kumari Victor, an Australian citizen and the applicant's daughter. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for this visa subclass.

The primary legal issue before the Tribunal was whether the applicant qualified as an "aged dependent relative" under the Migration Regulations 1994. This involved assessing whether the applicant was a "relative" of an Australian citizen, had no spouse or de facto partner, was of an age to receive an aged pension, and crucially, had been dependent on the Australian relative for a reasonable period and remained so dependent. The definition of "dependent" required the applicant to be wholly or substantially reliant on the Australian relative for financial support for basic needs, and for this reliance to be greater than reliance on any other person or source of support.

The Tribunal found that the applicant met the criteria of being a "relative" of an Australian citizen and that the applicant had no spouse or de facto partner, having been widowed. The Tribunal also noted that the applicant was of an age to be granted an aged pension. The central question of dependency was considered in light of the applicant's submissions and evidence regarding financial support. The Tribunal concluded that the applicant's reliance on Ms Victor was greater than their reliance on any other person or source of support, particularly given that four other children in the applicant's home country were unable to provide support.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under cl 838.212 (being a relative of an Australian citizen) and cl 838.221 (being dependent on that relative) of Schedule 2 to the Migration 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 Ms Manjula Prema Kumari Victor, 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 Ms Manjula Prema Kumari Victor is an Australian citizen and is the applicant’s daughter.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). In this case, the applicant is the ‘relative’ of an Australian relative for the purposes of cl 838.212. The paragraphs below address all aspects of the aged dependent relative definition. If the applicant does not meet one aspect of this definition, it is not necessary to consider the remaining aspects. If affirming the decision under review, delete the paragraphs that are not relevant.Does the applicant have a spouse or de facto partner? The applicant informed the Department that she had been married and that her husband had died on 22 December 2006. For these reasons subparagraph (a) of the definition of ‘aged dependent relative’ is met at the time of application and at the time of decision.Is the 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].

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; and · cl 838.221 of Schedule 2 to the Regulations. M. EdgooseMember

Ratio Decidendi

Legal Principle Established

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