Zdybicka (Migration) - [2021] AATA 4060

Zdybicka (Migration) [2021] AATA 4060 (7 October 2021)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Daniela Zdybicka
CASE NUMBER:  1906057
HOME AFFAIRS REFERENCE(S):          CLF2017/104622
MEMBER:Brendan Darcy
DATE OF DECISION:  7 October 2021
DATE CORRIGENDUM
SIGNED:18 October 2021
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

In paragraph 28 reference to the applicant’s daughter should be to the sponsor’s daughter

Brendan Darcy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Daniela Zdybicka
CASE NUMBER:  1906057
HOME AFFAIRS REFERENCE(S):          CLF2017/104622
MEMBER:Brendan Darcy
DATE:7 October 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 the Schedule 2 to the Regulations.

Statement made on 7 October 2021 at 12:25pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependent Relative) – definition of ‘aged dependent relative’ is met – applicant is not able to work – applicant was not meaningfully living independently during the relevant period – applicant has been for a substantial period wholly reliant on the sponsor for financial support– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.03, 1.05, Schedule 2, cls 838.212, 838.221
Social Security Act 1991

CASES
Cole v MIBP [2018] FCAFC 66
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 27 February 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 31 October 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 as the applicant did not meet the definition of aged dependent relative because the applicant failed to satisfy reg 1.05A(1).
Via an internet enabled audio-visual platform, the review applicant (the applicant) appeared before the Tribunal on 10 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor of…

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 Zdybicka (Migration)

Details

AGLC: Zdybicka (Migration) [2021] AATA 4060
Case: [2021] AATA 4060
Decision Date: 7 October 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, made by Ms Daniela Zdybicka against her claimed sister, Ms Marta Kaczmarek, an Australian citizen. The applicant, born in 1943, arrived in Australia in October 2017 and lodged her visa application shortly thereafter, at which time she was 74 years old. She asserted that she had been dependent on her sponsor for over 17 years, was divorced with no children, and that her sponsor was her only family member residing in Australia.

The primary legal issues before the Tribunal were whether the applicant met the definition of an 'aged dependent relative' and whether she had been living independently during the relevant period. Specifically, the Tribunal had to consider if the applicant was unable to work, had been wholly reliant on the sponsor for financial support for a substantial period, and had been meaningfully living independently.

The Tribunal found that the applicant met certain criteria for the Subclass 838 visa, including those related to her age and the definition of a relative. However, it determined that the applicant had not been meaningfully living independently during the relevant period. While she had previously owned an apartment and worked, she was unemployed at the time of application and had no other source of income. The Tribunal noted that she had resided with her sponsor in Australia and relied on her for food, clothing, and shelter. Consequently, the Tribunal concluded that the applicant had been wholly reliant on the sponsor for financial support for a substantial period.

As a result of these findings, 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 that further consideration was required for the remaining criteria.

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

Therefore, 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 the Schedule 2 to the Regulations.Brendan DarcyMember

Ratio Decidendi

Legal Principle Established

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, Ms Daniela Zdybicka, is the aged dependent relative of Ms Marta Kaczmarek, 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). The applicant was born in 11 May 1943 in Poland and is a Polish national. In this case, Ms Marta Kaczmarek, born on 24 April 1953, has Australian citizenship which she obtained on 4 March 1986 and claims to be the applicant’s biological sister. (The applicant claims that while she has two other siblings, one has passed away and the other’s whereabouts are unknown.)Background The applicant was granted a visitor visa on a Subclass 600 visitor visa on 8 July 2017 and then arrived in Australia 6 October 2017. The visa remained valid for three months from the date of arrival. An application for a permanent Class BC Subclass 838 Dependent Relative visa was lodged on 31 October 2017. At the time of lodgement, the applicant was aged 74 years. Attached to the application was a copy of the applicant’s divorce certificate indicating that her marriage had been entered into in 1970 and dissolved in 1977. In Part K of the Form 47OF, the applicant declared that she had been dependent on the sponsor for 17 years and two months. The applicant further described her circumstances as being divorced with no children and the sponsor to be her only family member who is an Australian citizen, Australian permanent resident or New Zealand citizen whose usual country of residence is Australia. The only evidence at the time of application that the applicant received money transfers from the sponsor were copies of confirmed payments through World First Pty Ltd indicating transfers of money from the sponsor to the applicant’s account in Poland’s Bank Pekao SA. On 14 August 2018, the Department requested the applicant to provide specific examples of evidence of financial dependency, as well as a questionnaire for the applicant to complete. On 10 September 2018, the applicant provided a response to the questionnaire, which included: ·The applicant leased an apartment in Krakow, Poland which she later bought with the assistance of her sister, prior to coming to Australia. The apartment is currently vacant pending the result of this visa application;·The applicant had worked as a library technician, editor and lecturer for 14-and-a-half years, but is currently unemployed;·The applicant had no source of income e.g. state pension or retirement savings, from any organisation in her country of origin or the Australian government;·The applicant has resided with her sister at her Sunshine West residence in the State of Victoria; and·The applicant also claimed her sister provided food, clothing and shelter with costs amounting to approximately 150 Australian dollars per week.