Agee (Migration)

Case [2025] ARTA 1066

AGEE (MIGRATION) [2025] ARTA 1066 (10 APRIL 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Ms Joyce Allison Agee

Visa Applicant:  Ms Ellen Leigh Agee

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2100245

Tribunal:General Member J Owen

Place:Sydney

Date:  10 April 2025

Decision:The Tribunal sets aside the decision under review and remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 115 (Remaining Relative) visa:

·cl 115.211 of Schedule 2 to the Regulations

·Cl 115.221 of Schedule 2 to the Regulations.

I, General Member J Owen certify that this is the
Tribunal's statement of decision and reasons

Statement made on 10 April at 1.37pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – near relatives in home country – two adult step-siblings from mother’s second marriage – no residence together or relationship as family – quality of relationship not determinative – mother and step-father now deceased – relationship terminated by death of mother – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(c), Schedule 2, cls 115.211, 115.221

CASES
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v FCT (1941) 64 CLR 241
Mercado v Minister for Immigration [2007] FMCA 1216
MIMIA v Hidalgo [2005] FCAFC 192
Oz v Minister for Immigration [2016] FCCA 1810
Re Burt [1988] 1 Qd R 23
Re Cook; ex parte C (1985) 156 CLR 249
Re Danes [1989] 2 Qd R 236
Project Blue Sky Inc v ABA (1998) 194 CLR 355
Scargill v MIMIA [2003] FCAFC 116
Scott-Mackenzie v Bail [2017] VSCA 108
SZTAL v MIBP [2017] HCA 34

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 December 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The visa applicant is a 74-year-old female American national. The visa applicant applied for the visa on 2 September 2020. At that time, 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 (Cth) (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. Relevantly to this matter, the…

Continue reading Agee (Migration)

Sign in free to access the full text

Details
AGLC
Agee (Migration) [2025] ARTA 1066
Case
[2025] ARTA 1066
Decision Date

CaseChat Overview and Summary

The case involves a visa applicant contesting the decision of the Minister for Immigration and Border Protection to cancel their visa. The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The central issue before the Tribunal was whether the visa applicant qualified as a "remaining relative" of an Australian citizen, Ms Joyce Allison Agee, who is the visa applicant's sister. To be granted a Subclass 115 visa, the applicant must be a remaining relative of an Australian relative at the time of application and continue to be a remaining relative at the time of decision.

The Tribunal meticulously examined the regulations and relevant case law to interpret the term "remaining relative" under reg 1.15 of the Migration Regulations 1994. It considered whether the visa applicant met the criteria of being a sibling of the Australian relative and whether Ms Agee was "usually resident" in Australia. The Tribunal also assessed whether the visa applicant had any near relatives, excluding those in Australia, who could affect their eligibility. Based on the evidence provided, including the Australian passport and movement records of Ms Agee, the Tribunal concluded that she was a long-term resident of Australia and fulfilled the criteria of being usually resident for the purposes of the visa application.

The Tribunal found that the visa applicant met the requirement of being a sibling to the Australian relative, and Ms Agee was indeed usually resident in Australia. However, the Tribunal determined that the decision under review was flawed and should be remitted for reconsideration. It found that the primary decision-maker had not appropriately considered all the evidence and the relevant legal framework. Consequently, the Tribunal set aside the decision and remitted the matter back to the Minister for a fresh consideration, ensuring all relevant factors were properly assessed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsiderationCONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the visa applicant is the remaining relative of Ms Joyce Allison Agee, who the visa applicant claims is their 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: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents). In this case Ms Joyce Allison Agee is the visa applicant’s sister and an Australian citizen, and therefore is an Australian relative for these purposes. DECISIONIs 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. ‘Remaining relative’ is defined in reg 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 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.The requirement to be a parent or sibling: reg 1.15(1)(a) The Tribunal has reviewed the documentation submitted as part of the application and is satisfied the Australian relative in this case, Ms Joyce Allison Agee, is the sister of the applicant, reg 1.15(1)(a) is met.Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b) The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of reg 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 reg 1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa. The Tribunal has reviewed the Australian relative’s Australian passport and movement records. The Tribunal is satisfied that as an Australian citizen she (being the review applicant and sister) is a long-term resident of Australia, and is usually resident in Australia for the purposes of this visa.

Decision

Reasons for decision

In this case Ms Joyce Allison Agee is the visa applicant’s sister and an Australian citizen, and therefore is an Australian relative for these purposes. DECISIONIs 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. ‘Remaining relative’ is defined in reg 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 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.The requirement to be a parent or sibling: reg 1.15(1)(a) The Tribunal has reviewed the documentation submitted as part of the application and is satisfied the Australian relative in this case, Ms Joyce Allison Agee, is the sister of the applicant, reg 1.15(1)(a) is met.Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b) The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of reg 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 reg 1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa. The Tribunal has reviewed the Australian relative’s Australian passport and movement records. The Tribunal is satisfied that as an Australian citizen she (being the review applicant and sister) is a long-term resident of Australia, and is usually resident in Australia for the purposes of this visa. As the Australian relative is usually resident in Australia, reg 1.15(1)(b) is met. No near relatives: reg 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 reg 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), 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.