1502170 (Migration)

[2016] AATA 3161

1502170 (Migration) [2016] AATA 3161 (1 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hyo Sook Youm
Mr Jong Kim

CASE NUMBER:  1502170

DIBP REFERENCE(S):  CLF2015/4110

MEMBER:Helena Claringbold

DATE:1 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in the matter of Mr Jong Kim.

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

Statement made on 01 February 2016 at 3:37pm

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 12 February 2015 to refuse to grant Ms Hyo Sook Youm and Mr Jong Kim, the applicants Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Hyo Sook Youm applied for the visa on 19 January 2015, on the basis that she is the remaining relative of Ms Michelle Hyun Ja Youm.  Mr Jong Kim who was the secondary applicant is the husband of Ms Hyo Sook Youm.  On 20 February 2015, Mr Kim withdrew from the application under review (refer: T1 f25).  As a result, the Tribunal has no Jurisdiction with regard to Mr Kim in this review.

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 Hyo Sook Youm was the remaining relative of Ms Michelle Hyun Ja Youm.

5. Ms Hyo Sook Youm requested review of the delegate’s decision and provided a copy of the delegate’s decision record.  Ms Hyo Sook Youm was invited to appear before the Tribunal on 28 January 2016 to give evidence and present arguments.  On 21 October 2015, Ms Youm’s migration provided the Tribunal with a response to the hearing invitation.  The Tribunal was advised that Ms Youm and Mr Kim would not be attending the Tribunal hearing, however that Mr Kim would attend the hearing by telephone (refer: T1 f40).  As Mr Kim has withdrawn from the application under review and the Tribunal has no Jurisdiction and Mr Kim is not the review applicant the Tribunal didn’t contact him.  The applicant did not attend the Tribunal hearing.

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 CLF2015/4110, folios numbered 1-199, and the Tribunal file 1502170, folios numbered 1-42 and the evidence at the Tribunal hearing.

8. The issue in this case is whether Ms Hyo Sook Youm is a remaining relative of an Australian relative, which in this case, is her sister, Ms Michelle Hyun Ja Youm.

   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 Hyo Sook Youm was born on 17 April 1962 and is a national of Korea (refer: D1 f174).  She applied for the visa on the basis that she is the remaining relative of Ms Michelle Hyun Ja Youm.

13. Ms Michelle Hyun Ja Youm was born on 26 December 1968. On 17 December 1996, she became an Australian citizen (refer: D1 f164). She is declared as Ms Hyo Sook Youm’s sister at the time of application (refer: D1 f79).  As Ms Michelle Hyun Ja Youm is the Australian relative in this case and is the sister of Ms Hyo Sook Youm, r.1.15(1)(a) is met.

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

14. 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 Michelle Hyun Ja Youm first arrived in Australia on 17 January 1987 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?

15. 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.

16. ‘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.

17. Ms Hyo Sook Youm must have no ‘near relatives’, with the exception of certain relatives in who are usually resident in Australia.

18. On the evidence before the Tribunal Ms Hyo Sook Youm’s  family composition is as follows:

    ·Her father, Suk Woo Youm, is usually resident in Australia.

    ·Her mother, Hyae SoonYoum, is deceased.

    ·Her sister, Hyun Sook Kim, is usually resident in Australia.

    ·Her sister, Jung Sook Kim, is usually resident in Australia.

    ·Her sister, Hyun Jin Youm, is usually resident in Australia.

    ·Her sister Nam Sook Youm, is usually resident in Australia.

    ·Her sister Michelle Hyun Ja Youm, is usually resident in Australia.

    ·Her brother, Jung Won Youm, is usually resident in Australia.

    ·Her brother, Seung Won Youm, is usually resident in Australia.

    ·Her daughter, Joo Kyung Lim, is usually resident in South Korea.

    ·Her daughter, Ju Yeon Lim, is usually resident in South Korea.

19. On the evidence before the Tribunal Mr Kim’s  family composition is as follows:

    ·His father, Bonggon Kim is deceased.

    ·His mother, Jaeok Jang is usually resident in South Korea.

    ·His sister Hwasun Kim, is usually resident in South Korea.

    ·His sister, Mansun Kim, is usually resident in South Korea.

    ·His brother, Hanju Jeong, is usually resident in South Korea.

    ·His brother, Manho Kim is usually resident in South Korea.

    ·His brother, Daeyun Kim, is usually resident in South Korea.

    ·His brother, Jong Kim, is usually resident in South Korea.

    ·His son, MinHyik Kim, is usually resident in South Korea.

20. Ms Joo Kyung Lim and and Ms Ju Yeon Lim, provided evidence that they are both working in South Korea and are not dependent on Ms Hyo Sook Youm (refer: d1 f44 and f50).  Therefore, Ms Hyo Sook Youm has two near relatives who usually reside in South Korea. 

21. Mr Kim has his mother, six siblings and a son who usually reside in South Korea.  His son, Mr MinHyik Kim provided evidence that he is working in South Korea and is not dependent on the applicants.  Therefore, Mr Kim has eight near relatives who usually reside in South Korea. 

22. On 16 February 2015, Ms Hyo Sook Youm’s migration agent submitted a withdrawal of Mr Kim from the application under review.   On 19 February 2015, The Tribunal wrote to Ms Hyo Sook Youm’s migration agent seeking clarification about the withdrawal.  The Tribunal noted that Mr Kim had recently been granted a Subclass 600 Visitor visa.  The Tribunal advised Ms Youm’s migration agent that if Ms Hyo Sook Youm was continuing with the application under review, on finalisation the decision record will show a finding of no Jurisdiction in respect of Mr Kim on the basis of the withdrawal.   On 20 February 2015, the Tribunal   received the Withdrawal of Application for Review Form which formalised the withdrawal of Mr Kim in the review application (refer: T1 f25).

23. The evidence before the Tribunal is that Ms Hyo Sook Youm and Mr Kim have ten near relatives.  There is no evidence before the Tribunal that Ms Hyo Sook Youm and Mr Kim’s near relatives are Australian citizens, Australian permanent residents or eligible New Zealand citizens, who are usually resident in Australia.

24. On the evidence before the Tribunal Mr Kim has withdrawn from the application under review and as a result the Tribunal has no Jurisdiction. 

25. 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.

26. 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.

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

28. 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.

29. With regard to Mr Kim, the Tribunal does not have jurisdiction in this matter.

30. With regards to Ms Youm, given the above, the Tribunal has no alternative but to affirm the decision under review.

    DECISION

31. The Tribunal does not have jurisdiction in the matter of Mr Jong Kim.

32. 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).