Zhou (Migration) - [2020] AATA 2912

Zhou (Migration) [2020] AATA 2912 (9 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Guozhi Zhou
VISA APPLICANT:  Ms Guiming Chen
CASE NUMBER:  1926160
DIBP REFERENCE(S):  OSF2015/000085
MEMBER:Kira Raif
DATE:9 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:
·cl.114.211 of Schedule 2 to the Regulations; and
·cl. 114.221 of Schedule 2 to the Regulations.

Statement made on 09 July 2020 at 3:41pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – dependant on Australian relative for reasonable period – wholly or substantially reliant – level of financial support to visa applicant by review applicant and siblings – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), Schedule 2, cls 114.211, 114.221
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 Immigration on 1 August 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 8 January 2015. The delegate refused to grant the visa on the basis that cl.114.221 was not met because the delegate was not satisfied the applicant was an aged dependent relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The review applicant appeared before the Tribunal on 9 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from two of the review applicant’s siblings. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration
Relevant law
At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa…

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 Zhou (Migration)

Details

AGLC: Zhou (Migration) [2020] AATA 2912
Case: [2020] AATA 2912
Decision Date: 9 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 114 (Aged Dependent Relative) visa. The applicant sought review of a decision concerning their eligibility for this visa, which requires the applicant to have been dependent on an Australian relative for a reasonable period and to be wholly or substantially reliant on that relative. The dispute centred on the level of financial support provided to the visa applicant by the review applicant and their siblings.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for the Subclass 114 visa, particularly concerning the requirement of being wholly or substantially reliant on a sponsor. This involved assessing the financial contributions made by the review applicant and their siblings to determine if they constituted sufficient support to satisfy the legislative requirements for dependency.

The Tribunal, having made findings regarding the level of financial support, determined that the visa applicant met certain specified criteria for the Subclass 114 visa, namely those found in cl.114.211 and cl.114.221 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for the visa back to the Minister for reconsideration, with a direction that these particular criteria were satisfied.

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

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 114 visa.DECISION The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 114 (Aged Dependent Relative) visa:·cl.114.211 of Schedule 2 to the Regulations; and·cl. 114.221 of Schedule 2 to the Regulations. Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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