Yu (Migration) - [2023] AATA 2357

Yu (Migration) [2023] AATA 2357 (21 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yueyou Yu
REPRESENTATIVE:  Ms Yuanyuan Jiang (MARN: 1678457)
CASE NUMBER:  1919238
HOME AFFAIRS REFERENCE(S):          CLF2018/51498
MEMBER:Stephen Conwell
DATE:21 July 2023
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 21 July 2023 at 4:26pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – applicant substantially reliant on sponsor for substantial period before application made – financial support while applicant living in home country and with other child in third country – evidence of financial transfers provided – more reliant on sponsor than any other person – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a), 376
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1)(a), 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 1 July 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 7 June 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 that the applicant had been, for a substantial period immediately before the application was lodged, wholly or substantially reliant on her sponsor for financial support to meet her basic needs for food, clothing and shelter.
The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The applicant was represented in relation to the review by her registered migration agent (representative).
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to…

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) [2023] AATA 2357
Case: [2023] AATA 2357
Decision Date: 21 July 2023

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 review of a decision made by the delegate.

The primary legal issue before the court was whether the applicant was substantially reliant on her sponsor for a substantial period before lodging her application, and whether the delegate had made a decision without hearing necessary evidence. The court was required to consider the evidence presented regarding the applicant's financial dependence, including financial transfers and the inadequacy of her own income.

The court reasoned that the evidence, including statements from the sponsor and his sister, medical reports, and records of financial transfers totalling $16,700 over three years, indicated that the applicant was substantially reliant on her sponsor. It was noted that no other individual had made monetary transfers to the applicant, and her daughter in New Zealand had been unable to provide financial support. The court found that the delegate had not adequately considered this evidence, leading to a decision made without hearing necessary evidence.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a 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

The applicant’s representative provided the Tribunal with a written submission (undated) with supporting documents to claim that the applicant was fully financially dependent upon her sponsor for a substantial period prior to lodging the application. The written submission states in part:· the applicant ceased farming activities in 2014 due to the death of her husband and her own advancing age and physical limitations,· since her husband’s death in July 2014 the applicant has been primarily reliant upon the sponsor to meet all her basic needs such as food, clothing, and shelter whilst in Australia as well as for significant periods during her residence in New Zealand and China;· the applicant has been living with, and been financially dependent on, her son since her last entry to Australia in May 2018, as evidenced by statements from the sponsor and his sister (who lives in New Zealand) and by the medical report dated 13 July 2013 issued in respect of the applicant;· the applicant’s pension income, totalling less than 130RMB per month, proved inadequate to cover her remaining essential needs. Supporting documents include translated records of her social insurance income (pension) from 2016 to 2017. It being noted that this income ceased upon her departure from China;· the delegate accepted that the applicant has shown evidence of money transfers to her in China from the sponsor (or her sponsor’s wife) totalling $16,700 in the three year period under review. It is submitted that the bank statements show that apart from the sponsor, no other individual has made any monetary transfers to the applicant. In particular her daughter in New Zealand (with whom she spent eight months in the three year period preceding this application) has been unable to financially support the applicant;· the sponsor’s wife’s (Ms Chen’s) ANZ statement from 3 February 2017 to 14 February 2017, reveals that the applicant transferred a total $5000 into Ms Chen’s account during this period. Whilst the applicant does possess a Westpac bank account in Australia, in fact, the primary user of this bank account is the sponsor, who used the account to receive income derived from his Uber driving activities from 2015 to 2017. The noted transfers were therefore not from the applicant to her daughter-in-law, but from the sponsor to his wife;· in addition to the social insurance account held at the Agricultural Bank of China, the applicant maintains two bank accounts with the Bank of China. The first account's number ends with xxx 2072, while the second account's number ends with xxx 9079. Supporting documents included bank statements for both accounts for the period from 2014 to 2019, each showing limited transactions.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the aged dependent relative of Mr Liechao JIANG, the applicant claims is their relative. Relative is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).

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.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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