1936119 (Migration) - [2022] AATA 1523

1936119 (Migration) [2022] AATA 1523 (22 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1936119
MEMBER:Helena Claringbold
DATE:22 February 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 22 February 2022 at 1:57pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – remaining relative of an Australian relative – near relative – Indian Mizo community customary law practice “Sawn Man” – no payment made for legal parenthood – visa applicant’s remaining half-sister – applicant not acknowledged legally by his natural father – decision under review affirmed
LEGISLATION
Migration Act 1958
Migration Regulations 1994, Schedule 2 cls 115.211, 115.221; rr 1.03, 1.15
CASES
Mercado v MIAC [2007] FMCA 1216
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

On 31 May 2016, [name], the visa applicant (the applicant), applied for an Other Family (Migrant) (Class BO) (Subclass 115) visa. The application was based on him being the remaining near relative of [name], the sponsor and the review applicant.
On 14 October 2019, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant was the remaining relative of an Australian relative, namely the sponsor. Therefore, the applicant did not meet cl.115.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 21 December 2019, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the sponsor.
At the time of visa 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 Regulations. In the present case, the visa applicant is 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.
On 24 November 2021, the sponsor appeared before the Tribunal to give oral evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and [the sponsor’s husband].
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and completely, all of the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
The issue in this case is whether the applicant, at the time of application, was the remaining relative (as defined), of…

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 1936119 (Migration)

Details

AGLC: 1936119 (Migration) [2022] AATA 1523
Case: [2022] AATA 1523
Decision Date: 22 February 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 115 (Remaining Relative), brought by an applicant who resided in India. The applicant sought to establish that they were a "remaining relative" of an Australian relative, specifically their sponsor who was an Australian citizen. The core of the dispute revolved around whether the applicant met the definition of a "remaining relative" under Regulation 1.15 of the Migration Regulations 1994, particularly concerning the requirement to have no "near relatives" outside of Australia who were not Australian citizens, permanent residents, or eligible New Zealand citizens.

The legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an Australian relative at the time of their visa application. This required the Tribunal to determine if the sponsor was an "Australian relative" and if the applicant, along with their spouse or de facto partner, had no "near relatives" other than those usually resident in Australia and holding Australian citizenship, permanent residency, or eligible New Zealand citizenship. The definition of "near relative" under Regulation 1.15(2) was central to this determination.

The Tribunal affirmed the decision not to grant the visa. The applicant's biological father had died, and their biological mother and stepfather resided in Australia. The applicant also had a half-sister and paternal grandparents in India. The Tribunal found that the applicant's half-sister in India constituted a "near relative" who was not usually resident in Australia and did not hold Australian citizenship or permanent residency. Consequently, the applicant failed to satisfy the criterion under Regulation 1.15(1)(c) that they and their spouse or de facto partner have no near relatives other than those usually resident in Australia and holding Australian citizenship, permanent residency, or eligible New Zealand citizenship. The Tribunal concluded that the applicant did not meet the criteria for the Subclass 115 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether the applicant, at the time of application, was the remaining relative (as defined), of an Australian relative within the meaning of r.1.15 of the Regulations.BACKGROUND The applicant was born in [year] in India. His mother, stepfather and two stepsiblings live in Australia. [In] 1998, his biological father died. [Sister A] his half-sister was born in [year]. She lives in India. His paternal grandparents also live in India. The sponsor was born in [year] in India. [In] February 2007, she entered Australia as the holder of a [student] visa. [In] May 2011, she married [her husband]. There are two children of this relationship. [In] August 2015, the sponsor became an Australian citizen by grant. Is the visa applicant a remaining relative of an Australian relative? To be granted a Subclass 115 visa the 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 of Schedule 2 to the Regulations. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision. 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). Broadly speaking a visa applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the visa applicant and is ‘usually resident in Australia’. The visa 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 visa applicant is an adopted child.No near relatives: r.1.15(1)(c) 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. ‘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, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or stepchild, 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. The applicant provided information about the composition of his family members as follows:·[Father A], biological father, deceased.·[The review applicant’s maiden name], born [in year], biological mother, living in Australia.·[The review applicant’s husband], born [in year], stepfather, living in Australia.·[Name deleted], born [in year], half-brother, living in Australia.·[Name deleted], born [in year], half-sister, living in Australia.·[Name], paternal grandmother, living in India. ·[Name], maternal grandfather, living in India. ·[Uncle A], uncle, living in India.·[Ms A], born [year], biological father’s partner, living in India.·[Sister A], born [year], half-sister, living in India.

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 The Tribunal has taken into consideration, individually and completely, all of the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. ISSUE The issue in this case is whether the applicant, at the time of application, was the remaining relative (as defined), of an Australian relative within the meaning of r.1.15 of the Regulations.BACKGROUND The applicant was born in [year] in India. His mother, stepfather and two stepsiblings live in Australia. [In] 1998, his biological father died. [Sister A] his half-sister was born in [year]. She lives in India. His paternal grandparents also live in India. The sponsor was born in [year] in India. [In] February 2007, she entered Australia as the holder of a [student] visa. [In] May 2011, she married [her husband]. There are two children of this relationship. [In] August 2015, the sponsor became an Australian citizen by grant. Is the visa applicant a remaining relative of an Australian relative? To be granted a Subclass 115 visa the 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 of Schedule 2 to the Regulations. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision. 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). Broadly speaking a visa applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the visa applicant and is ‘usually resident in Australia’. The visa 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 visa applicant is an adopted child.No near relatives: r.1.15(1)(c) 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. ‘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, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or stepchild, 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.

Decision

Reasons for decision

For the reasons above, the 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 applicant meets the criteria for the visa sought. DECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.Helena ClaringboldMemberATTACHMENT - 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 affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.Helena ClaringboldMemberATTACHMENT - 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).