Zhang (Migration) - [2018] AATA 4017

Zhang (Migration) [2018] AATA 4017 (20 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Yunfang Zhang
CASE NUMBER:  1604877
DIBP REFERENCE(S):  CLF2015/72106
MEMBER:John Billings
DATE:20 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 20 August 2018 at 2:52pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa residence – Subclass 838 (Aged Dependent Relative) – definition of aged dependent relative – surplus of pension income over basic needs – transfer of funds – proceeds from deceased estates – medical conditions – sponsor’s mental health – ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 2958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 838.211, 838.212, 838.221

CASES
Fernandez v MIBP [2015] FCA 1265
Fernandez v MIBP [2015] FCCA 1698
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 Immigration on 24 March 2016 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Ms Zhang, applied for the visa on 13 November 2015. She was sponsored by her daughter, Ms Jenny Fan, who is a 63 year old Australian citizen. At the time Ms Zhang applied, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, Ms Zhang is seeking to satisfy the criteria for the grant of a Subclass 838 visa. This 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.211 and cl.838.221.
The delegate refused to grant the visa on the basis that Ms Zhang did not meet cl.838.212. The delegate referred to the definition of “aged dependent relative” in r.1.03. The delegate was satisfied that Ms Zhang is a relative of an Australian relative, Ms Fan; that Ms Zhang does not have a spouse or de facto partner; and that she is old enough to be granted an age pension under the Social Security Act 1991. But the delegate was not satisfied that Ms Zhang had been dependent on Ms Fan for a reasonable period and remained so dependent. The delegate referred to a lack of evidence to substantiate the transfer of funds by Ms Fan to Ms Zhang. The delegate also referred to an apparent surplus of Ms Zhang’s monthly Chinese pension income over her “monthly basic needs expenses”; her entitlement to the property in which she resided; and her savings.
Ms Fan applied…

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 Zhang (Migration)

Details

AGLC: Zhang (Migration) [2018] AATA 4017
Case: [2018] AATA 4017
Decision Date: 20 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Zhang, an applicant for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The visa application was made by Ms Zhang, who relied on her Australian relative, Ms Fan, as a sponsor. The core dispute revolved around whether Ms Zhang met the definition of an "aged dependent relative" at the time of her application and continued to meet that criterion.

The Tribunal was required to determine whether Ms Zhang was wholly or substantially reliant on Ms Fan for financial support to meet her basic needs for food, clothing, and shelter, and whether this reliance was greater than her reliance on any other person or source of support. The Tribunal also had to consider whether Ms Zhang's reliance was due to the total or partial loss of her bodily or mental functions. Furthermore, the Tribunal examined whether the period of dependency was a "reasonable period," including time before Ms Zhang's arrival in Australia.

The Tribunal accepted the oral evidence of Ms Fan and other witnesses, acknowledging Ms Zhang's inability to attend the hearing due to medical conditions. However, despite accepting the veracity of the evidence regarding financial transfers, the Tribunal found that it did not demonstrate that these funds were used to meet Ms Zhang's basic needs. Specifically, the Tribunal noted that Ms Zhang was the beneficiary of her deceased father's estate, which included an apartment, meaning she was not reliant on Ms Fan for shelter at that time. While Ms Fan had contributed to relief efforts and the Australian Chinese community, and there was a suggestion that Ms Fan might not have a realistic option to return to China, these factors did not establish the required dependency for the visa subclass.

Ultimately, the Tribunal affirmed the delegate's decision not to grant Ms Zhang the visa. While acknowledging the potential benefits to the Australian community if Ms Zhang remained, the Tribunal concluded that the criteria for an aged dependent relative visa were not met. The Tribunal did, however, consider it appropriate to make a referral to the Minister.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE On the basis of the medical evidence, referred to further below, and the oral evidence, the Tribunal accepts that Ms Zhang was not able to attend the hearing and give evidence. The Tribunal accepts the veracity of the evidence given by Ms Fan and the witnesses. Clause 838.212 is a time of application criterion requiring that the applicant be an aged dependent relative of an Australian relative. Clause 838.221 is a time of application criterion requiring that the applicant continues to satisfy cl.838.212. There is no controversy that Ms Zhang is a relative of an Australian relative, Ms Fan; that Ms Zhang does not have a spouse or de facto partner; and that she is old enough to be granted an age pension under the Social Security Act 1991. The issue is whether at the time of application Ms Zhang had been dependent on Ms Fan for a reasonable period and remained so dependent and, if so, whether she continues to be dependent. The definition of ‘dependent’ as it applies to this application is set out in r.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: r.1.05A(1). For the purposes of this application, reference to a ‘substantial period’ in r.1.05A means a period not more substantial than a ‘reasonable period’: Huang v MIMIA [2007] FMCA 720 at [47]. In the circumstances of this case a reasonable period includes time before Ms Zhang came to Australia in September 2014: see Fernandez v MIBP [2015] FCCA 1698 especially at [13]-[15], and Fernandez v MIBP [2015] FCA 1265. Further, the proper construction of ‘dependent’ in r.1.05A does not carry any implication of the notion of necessity or lack of choice r.1.05A: Huynh v MIMIA (2006) 152 FCR 576 at [43]. That is to say, it is not the case that an applicant must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the other person. The Tribunal has referred to the reasons given by the delegate for refusing the visa. Among other things, the delegate referred to a lack of evidence to substantiate the transfer of funds by Ms Fan to Ms Zhang. The Tribunal considers that credible, reliable oral evidence was given by Ms Fan and Mr Cao. The problem is that the evidence still does not indicate that this was financial support for Ms Zhang to meet her basic needs for food clothing and shelter. Ms Fan told the Tribunal that her father’s deceased estate consisted more or less only of the apartment in which Ms Zhang lived before she came to Australia in September 2014. Ms Zhang became the sole beneficiary after her children waived any entitlement. Ms Zhang was therefore not receiving financial support from Ms Fan to meet her basic needs for shelter. Ms Zhang’s apartment was subsequently sold. Ms Fan said that the proceeds were put into Ms Zhang’s bank account. (The deposit was said to explain an increase in funds that was noted by the delegate. A portion of the funds has been used by Ms Fan to purchase a grave site for Ms Zhang in Australia).

Decision

Reasons for decision

In addition to the Salvation Army letter there is material that was submitted to the Department and to the Tribunal such as media reports that refers to Ms Fan’s contribution to local and international relief efforts and her general contribution to the Australian Chinese community. Ms Fan has risen to the rank of major. (According to the Salvation Army’s website that is the rank of an officer who has completed further studies’ and 15 years’ service)[1]. [1] >Ms Fan may not have a realistic option of returning to live in China. Whatever the case, it is reasonable to consider that if Ms Zhang is permitted to remain in Australia Ms Fan will wholeheartedly choose to remain with the result that there will be significant continuing benefits to the Australian community. Examining relevant factors individually and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.DECISIONThe Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.John BillingsSenior Member

Ratio Decidendi

Legal Principle Established

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