1730636 (Migration) - [2019] AATA 3870

1730636 (Migration) [2019] AATA 3870 (26 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1730636
DIBP REFERENCE(S):  OSF2012/001259
MEMBER:Jane Marquard
DATE:26 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for the first, second and third named applicants for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:
·cl.115.211 of Schedule 2 to the Regulations;
·cl.115.221 of Schedule 2 to the Regulations;
·cl. 115.311 of Schedule 2 to the Regulations; and
·cl.115.321 of Schedule 2 to the Regulations

The Tribunal affirms the decision not to grant the fourth named applicant an Other Family (Migrant)(Class BO) visa.

Statement made on 26 March 2019 at 10:30am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 115(Remaining Relative visa)– Federal Circuit Court remittal – Australian relative is usually resident in Australia – death certificates provided – visa applicant had no near relatives – decision under review remitted for the first, second and third named applicants – decision under review affirmed for the fourth named applicant

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.12, 1.15, Schedule 1, Schedule 2, cls 115.211, 115.221, 115.311, 115.321

CASES
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Ignatious v MIMIA [2004] FCA 1395
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The primary visa applicant in this case is Ms [B]. She was born in [year] and is from Kabul, Afghanistan. She works as an [Occupation 1]. Included in her application are her husband, daughter and her husband’s niece.
Ms [A] claims to be the remaining relative of her sister, Ms [A], the review applicant, who is an Australian citizen.
The visa applicants applied for Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act) on 15 March 2012.
A delegate of the Minister for Home Affairs refused to grant the visas on 11 March 2014 as the delegate was not satisfied that cl.115.211 was met. Clause 115.211 requires that the primary visa applicant be the remaining relative of an Australian relative.
On 6 August 2015 the Administrative Appeals Tribunal (the Tribunal) differently constituted, affirmed the decision of the Department dated 11 March 2014. The Tribunal had concerns about the honesty of the review applicant as she had failed to include her brother’s name in an application for her own XB-204 visa. Further, in relation to a different application, when sponsoring her sister-in-law under a different name, she had not declared that her sister-in-law had previously been refused a visa. The Tribunal differently constituted was not satisfied on the evidence provided that the primary visa applicant’s…

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 1730636 (Migration)

Details

AGLC: 1730636 (Migration) [2019] AATA 3870
Case: [2019] AATA 3870
Decision Date: 26 March 2019

CaseChat Overview and Summary

This matter concerned applications for Other Family (Migrant) (Class BO) visas, specifically seeking a Subclass 115 (Remaining Relative) visa. The dispute arose because the visa applicants claimed to be the "remaining relative" of an Australian citizen. The court was required to determine whether the applicants met the criteria for this visa subclass, particularly concerning their relationship to an Australian relative and the absence of other near relatives not residing in Australia.

The court was tasked with interpreting and applying the criteria for a Subclass 115 visa as set out in the Migration Regulations 1994. Specifically, the court had to consider whether the Australian relative was usually resident in Australia, and whether the visa applicant, along with their spouse or de facto partner, had no "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. The court also had to assess whether the applicants met specific clauses within Schedule 2 of the Regulations, including cl.115.211, cl.115.221, cl.115.311, and cl.115.321.

The court found that for the first, second, and third named applicants, the criteria for a Subclass 115 visa were met, including being a remaining relative of an Australian citizen who was usually resident in Australia, and having no near relatives outside of Australia. However, the court was not satisfied that the fourth named applicant met clause 115.321 of the Regulations. Consequently, the court remitted the applications for the first, second, and third named applicants for reconsideration with a direction that the specified criteria were met, while affirming the decision not to grant the visa to the fourth named applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the time of application Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.115.211.CONSIDERATION OF CLAIMS AND EVIDENCE In coming to a decision in this matter, the Tribunal has taken into consideration evidence before the Department, the Tribunal as it was differently constituted, and this Tribunal. The evidence is summarised in the findings below.Is the visa applicant a remaining relative of an Australian relative? The visa application was made on the basis that the primary visa applicant is the remaining relative of the review applicant, Ms [A]. The primary visa applicant claims Ms [A] is her Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents). A copy of a family tree and a copy of Ms [A]’s Certificate of Citizenship dated 10 March 2006 are on the Department file. The Tribunal is satisfied on the basis of the documents provided that Ms [A] is the primary visa applicant’s sister, and is an Australian citizen and is therefore an Australian relative for these purposes. To be granted a Subclass 115 visa the primary visa 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.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision. 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 visa applicant and is ‘usually resident in Australia’. The primary visa applicant, together with her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. The requirement to be a parent or sibling: r.1.15(1)(a) On the basis of the family tree and other evidence before the Tribunal, the Tribunal is satisfied that the primary visa applicant is the sister of Ms [A], who is an Australian citizen. As the Australian relative in this case is the sister of the applicant, r.1.15(1)(a) is met.Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

Decision

Reasons for decision

The Tribunal is not satisfied that the fourth named applicant meets cl.115.321. Thus, the fourth named visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the fourth named visa applicant meets prescribed criteria for the visa sought.DECISION The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for the first, second and third named applicants for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:·cl.115.211 of Schedule 2 to the Regulations;·cl. 115.221 of Schedule 2 to the Regulations;·cl. 115.311 of Schedule 2 to the Regulations; and·cl. 115.321 of Schedule 2 to the Regulations. The Tribunal affirms the decision not to grant the fourth named visa applicant an Other Family (Migrant) (Class BO) visa.Jane MarquardMemberATTACHMENT - Extracts from the Migration Regulations 19941.15 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).

Ratio Decidendi

Legal Principle Established

The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for the first, second and third named applicants for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:·cl.115.211 of Schedule 2 to the Regulations;·cl. 115.221 of Schedule 2 to the Regulations;·cl. 115.311 of Schedule 2 to the Regulations; and·cl. 115.321 of Schedule 2 to the Regulations. The Tribunal affirms the decision not to grant the fourth named visa applicant an Other Family (Migrant) (Class BO) visa.Jane MarquardMemberATTACHMENT - Extracts from the Migration Regulations 19941.15 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).