Yu (Migration) - [2021] AATA 2617

Yu (Migration) [2021] AATA 2617 (7 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Hee Lian Yu
CASE NUMBER:  1826080
HOME AFFAIRS REFERENCE(S):          CLF2017/17683
MEMBER:Andrew McLean Williams
DATE:7 July 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 07 July 2021 at 11:30am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – wholly or substantially dependent for financial support – substantial period – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 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 17 August 2018 refusing to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant had applied for the visa on 20 February 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 visa application had not provided sufficient evidence to show that the applicant had been, for a substantial period prior to the visa application, wholly or substantially dependent on her sponsor for financial support in order to meet her basic needs for food, clothing and shelter to a greater extent than her reliance on any other means of financial support for each of those things.
The applicant failed to appear at the hearing before the Tribunal on 7 July 2021 to give evidence and present arguments. Other than the original Application for review, no other materials or evidence were filed in the Tribunal registry in support of the Application prior to the hearing date.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant claims to be the aged dependent relative of Gangqi Clement Yu, who the applicant claims as their relative. Relative is defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or…

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 Yu (Migration)

Details

AGLC: Yu (Migration) [2021] AATA 2617
Case: [2021] AATA 2617
Decision Date: 7 July 2021

CaseChat Overview and Summary

This matter concerned an application for a Subclass 838 (Aged Dependent Relative) visa, where the applicant claimed to be the aged dependent relative of Gangqi Clement Yu, an Australian citizen. The 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 required the Tribunal to assess if the applicant was a "relative" of the Australian citizen, whether they had a spouse or de facto partner, if they were of an age to receive an Australian age pension, and crucially, if they had been wholly or substantially dependent on the Australian relative for financial support for a substantial period.

The Tribunal found that the applicant, aged 70, met the age requirement and did not have a spouse. However, the Tribunal concluded that there was insufficient evidence to demonstrate that the applicant had been wholly or substantially dependent on her nephew for financial support for a substantial period prior to lodging the visa application. The Tribunal applied the definition of "dependent" in regulation 1.05A, which requires reliance for financial support to meet basic needs, and that this reliance must be greater than reliance on any other source. The Tribunal also noted that "substantial period" is construed as a "reasonable period" and that the definition of dependence does not imply necessity or lack of choice.

Consequently, as the applicant failed to satisfy the dependency requirement, the Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant claims to be the aged dependent relative of Gangqi Clement Yu, who the applicant claims as their relative. Relative is 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 Gangqi Clement Yu is an Australian citizen, permanent resident, or an eligible New Zealand and is the Applicant’s nephew.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 Applicant was aged 70 at the time of the visa application and was therefore old enough to be granted an age pension in Australia. The applicant never married and does not have a spouse. 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]. However, in this case there is simply insufficient evidence to demonstrate that the applicant had been financially dependent on her nephew in Australia for a substantial period prior to the making of the visa application. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is not met at the time of application.

Ratio Decidendi

Legal Principle Established

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