Zapata Lanz (Migration) - [2024] AATA 41

Zapata Lanz (Migration) [2024] AATA 41 (5 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Herenia Josefina Zapata Lanz
REPRESENTATIVE:  Mr Nathan Stephen Willis (MARN: 1467692)
CASE NUMBER:  2205595
HOME AFFAIRS REFERENCE(S):          CLF2018/172148
MEMBER:Andrew McLean Williams
DATE:5 January 2024
PLACE OF DECISION:  Brisbane
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:
·clause 838.212 of Schedule 2 to the Regulations; and
·clause 838.221 of Schedule 2 to the Regulations.

Statement made on 05 January 2024 at 3:23pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – aged dependent relative of an Australian relative – wholly or substantially reliant – substantial period of dependency – living conditions in Venezuela – bank transfers – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 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 4 April 2022 thereby refusing to grant Ms Herenia Josefina Zapata Lanz (‘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 29 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 Applicant 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, the primary include clause 838.212.
The Delegate refused to grant the visa on the basis that clause 838.212 was not met because the Applicant had not provided answers in response to a Departmental Questionnaire within a specified timeframe. In the absence of information given in response to that questionnaire by the specified deadline the Delegate had determined that there was simply insufficient evidence to be satisfied that the Applicant was the aged dependent relative of her sponsor and daughter Ms Raquel Beatriz Salmeron Zapata.
The Applicant and her daughter each appeared before the Tribunal on 29 November 2023 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The Applicant was represented in relation to the review by her authorised representative Dr Nathan Willis (MARN 1467692) of ‘Visa Assist Australia’. Dr Willis also attended the Tribunal hearing on 29 November…

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 Zapata Lanz (Migration)

Details

AGLC: Zapata Lanz (Migration) [2024] AATA 41
Case: [2024] AATA 41
Decision Date: 5 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The applicant, an 80-year-old woman, sought the visa on the basis of her relationship with her daughter, Raquel Beatriz Salmeron Zapata, an Australian citizen. The core of the dispute revolved around whether the applicant met the definition of an "aged dependent relative" as defined in regulation 1.03 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant was an "aged dependent relative" of her Australian relative, Raquel. This involved assessing whether the applicant met the criteria of being a "relative" within the meaning of regulation 1.03, not having a spouse or de facto partner, having been dependent on the Australian relative for a substantial period and remaining so dependent, and being of an age to qualify for an aged pension under the Social Security Act 1991. The central legal issue was the applicant's dependency on her daughter.

The Tribunal found that the applicant was an Australian citizen's daughter, was divorced and without a spouse or de facto partner, and was of an age to qualify for an aged pension, satisfying these aspects of the definition. However, the Tribunal concluded that the evidence regarding the applicant's dependency on her daughter, Raquel, was not sufficiently established to make a final determination. The Tribunal noted that while there was evidence of bank transfers and living conditions in Venezuela, these did not definitively prove the required level of dependency for a substantial period.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under clauses 838.212 and 838.221 of Schedule 2 to the Regulations, but the question of dependency required further assessment.

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 her daughter Raquel Beatriz Salmeron Zapata, who the Applicant claims as her ‘relative’. Relative is defined for these purposes in regulation 1.03, and means either a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle, niece or nephew (or their step equivalents). In this case Ms Raquel Beatriz Salmeron Zapata is an Australian citizen and is the Applicant’s daughter. There is satisfactory evidence in proof of that which has already been accepted by the Department. As such, Raquel qualifies under regulation 1.03 as a ‘close relative’ and ‘Australian relative’ of the Applicant.Is the Applicant an ‘aged dependent relative’ of her Australian relative? The Applicant is now 80 years of age and has a number of health conditions requiring regular medical treatment. In order 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 must then continue to be an aged dependent relative of that person at the time of decision: clause 838.212, clause 838.221 and clause 838.111. ‘Aged dependent relative’ is defined in regulation 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 regulation 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). As already indicated, on the basis of the evidence now before it, the Tribunal is quite satisfied that Raquel is an Australian citizen and is also the only daughter of the Applicant. The Tribunal is further satisfied that - as at the time of applying for the visa - the Applicant was: a divorcee; who did not have either a spouse or a de-facto partner; and that the Applicant was then already 74 years of age and hence of an age at which she would have been entitled to qualify for an aged pension under the Social Security Act. These things remain true as at the date of the Tribunal’s decision. Accordingly, each of subparagraphs (a) and (c) of the definition of ‘aged dependent relative’ in regulation 1.03 are met by the Applicant: both the time of application and at the time of decision.Is the Applicant ‘dependent’ on the Australian relative? The central issue in this case relates to the question of dependency. In order to be an aged dependent relative the Applicant must satisfy the requirements of regulation 1.03(b), which requires that she be ‘dependent’ upon her daughter Raquel.

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:· clause 838.212 and clause 838.221 of Schedule 2 to the Regulations.Andrew McLean WilliamsMember

Ratio Decidendi

Legal Principle Established

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