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

1. 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’).

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

7. 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?

8. 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.

9. 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).

10. 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?

11. 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).

12. 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].

13. 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.

14. For these reasons subparagraph (b) of the definition of ‘aged dependent relative’ is not met at the time of application.

15. Accordingly the Tribunal is not satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application.

16. For the reasons above, the Tribunal finds that the applicant does not meet the criteria for a Subclass 838 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant an ‘Other Family (Residence)’ (Class BU) visa.

    Andrew McLean Williams
    Member