1411993 (Migration)

[2015] AATA 3953

1411993 (Migration) [2015] AATA 3953 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss So Hee KIM

CASE NUMBER:  1411993

DIBP REFERENCE(S):  CLF2014/52010

MEMBER:Helena Claringbold

DATE:21 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 21 December 2015 at 8:11am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 June 2014 to refuse to grant Ms So Hee Kim, the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Kim applied for the visa on 3 April 2014 on the basis that she is the remaining relative of Ms Mee Leem Rhee.

3. At the time of application, 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 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212.

4. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied Ms Kim was the remaining relative of Ms Rhee.

5. Ms Kim requested review of the delegate’s decision and provided a copy of the delegate’s decision record.  Ms Kim appeared before the Tribunal on 17 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rhee. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department’s file CLF2014/52010, folios numbered 1-89, and the Tribunal file 1411993, folios numbered 1-117 and the evidence at the Tribunal hearing.

8. The issue in this case is whether Ms Kim is a remaining relative of an Australian relative.

   Is the applicant a remaining relative of an Australian relative?

9. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.835.212 and cl.835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

10. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

11. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the applicant is an adopted child.

12. Ms Kim was born on 24 July 1987 and is a national of Korea (refer: D1 f14).  She applied for the visa on the basis that she is the remaining relative of Ms Rhee, who Ms Kim claims is their Australian relative.  In this case Ms Kim claims that Ms Rhee is her mother.  Ms Rhee was born on 7 March 1962.  She was granted a Contributory Parent visa on 16 December 2011.  She is an Australian citizen. She is declared as Ms Kim’s mother in the family relationship certificate provided at the time of application (refer: D1 f12).  As Ms Rhee is the Australian relative in this case and is the mother of Ms Kim, r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

13. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of r.1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa. Ms Rhee first arrived in Australia on 26 August 1999 and has resided in Australia since that time; therefore, r.1.15(1)(b) is met.

    Does the applicant have other ‘near relatives’ except those eligible citizens?

14. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

15. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

16. Ms Kim must have no ‘near relatives’, with the exception of certain relatives in who are usually resident in Australia.

17. On the evidence before the Tribunal Ms Kim’s  family composition is as follows:

    ·Ms Kim’s father Mr Sang Cheong Kim was born on 6 January 1955 and is usually resident in Korea. Evidence of their relationship is supported in the family relationship certificate provided at time of application (refer: D1 f12).

    ·Ms Kim’s mother, Ms Mee Leem Rhee, is an Australian citizen, usually resident in Australia.

    ·Ms Kim’s brother, Mr Byeong Kim, who was born on 24 November 1984, is an Australian citizen, usually resident in Australia

18. On 1 April 2014, Ms Rhee provided evidence that in 1999 she joined Mr Kim, her husband, and her children in Australia.  Mr Kim had difficulties settling in Australia and departed Australia approximately three months after Ms Rhee’s arrival.  She stated that Ms Kim has had hardly any contact with her father. 

19. Additionally, Ms Kim’s migration agent provided that Mr Sang Cheong Kim has resided in Korea since 1999 and has had no contact with his wife or children

20. On 10 October 2014, Ms Kim’s migration agent stated the following: that Mr Sang Cheong Kim is alive and living in South Korea (refer: T1 f89); that Mr Kim has not provided any financial support to his wife and children and a formal divorce or court endorsed arrangements do not exist (refer: T1 f89).  Additionally she provided a history of Ms Kim’s immigration status in Australia since her arrival in Australia and of her studies in Australia (refer: T1 f16-f89).

21. In addition Ms Kim’s migration agent requested that the Tribunal seeks Ministerial intervention in this matter (refer: T1 f82). The Tribunal had determined not to seek Ministerial intervention.

    The Tribunal Hearing

22. Ms Kim and Ms Rhee agree in their evidence and do not challenge that Ms Kim’s father, Mr Sang Cheong Kim, is alive and living in South Korea.  They stated that there has been limited contact between Mr Kim and Ms Kim and this contact took place in the months after he departed Australia in 1999.  They told the Tribunal that the father-daughter relationship is estranged. 

23. Ms Kim told the Tribunal that she has attempted to obtain Australian permanent residency several times.  Unfortunately, on each occasion she did not meet the relevant requirements for the grant of the visas.  This has been difficult for her as her only home is with her mother in Australia whom she has lived with since her mother’s arrival in 1999.  The Tribunal was also told that Ms Rhee has become increasingly dependent on her daughter and that they have a love and bond for each other. 

24. Ms Kim told the Tribunal that she has lived in Australia since 1998 and feels Australian and is immersed in the Australian culture and the Australian way of life. The Tribunal found Ms Kim and Ms Rhee to be credible. 

25. There is no evidence that Mr Sang Cheong Kim is an Australian citizen, permanent resident or eligible New Zealand citizen or that Mr Kim is deceased.  The unchallenged evidence before the Tribunal is that Mr Kim is alive and resides in Korea.  Although Ms Kim’s relationship with her father, Mr Kim, is estranged it does not sever their relationship and as a result Mr Kim meets the definition of near relative.

26. The Tribunal has considered the evidence individually and as a whole.  On the evidence before the Tribunal, the Tribunal is not satisfied that Ms Kim has no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

27. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian relative at the time of application and at the time of decision for the purposes of cl.115.211 and cl.115.221.

28. For the reasons above, the applicant does not meet the criteria for a Subclass 115 visa.

29. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for either of the remaining subclasses.

30. Given the above, the Tribunal has no alternative but to affirm the decision under review.

31. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Helena Claringbold
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    1.15     Remaining relative

    (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

    (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

    (b)the other person is usually resident in Australia; and

    (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

    (i)usually resident in Australia; and

    (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

    (d)if the applicant is a child who:

    (i) has not turned 18; and

    (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

    at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

    (2)In this regulation:

    near relative, in relation to an applicant, means a person who is:

    (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

    (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).