Agee (Migration) - [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

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).
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 primary criteria to be met include cl 115.211.
The delegate refused to grant the visa on the basis that cl 115.211 was not met because at the time of application the visa applicant had a near relative, her step-brother [Mr A] (born [Date]) and her step-sister [Ms B] (born [Date]) who were not usually resident in Australia and were not an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen. The visa applicant had declared that her step-brother’s and step-sister’s country of residence is the United States of America. The applicant also declared that her step-brother and step-sister were not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. The applicant subsequently did not meet subregulation 1.15(1)(c) and did not meet the definition of Remaining Relative at reg. 1.15.
The review applicant appeared before the Tribunal by video from the United States on 11 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration
CONSIDERATION 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.
DECISION
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. ‘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.
At the Tribunal’s hearing and in written submissions, the review applicant discussed the background to the visa applicant’s family history. She noted their late mother had married [Mr C], who had two children of his own [Mr A] and [Ms B]. The visa applicant had subsequently listed them as ‘step-siblings’ in her visa application.
It has been submitted that [Mr A] and [Ms B] should not be considered as ‘near relatives’ of the visa applicant despite both technically meeting the criteria of a step-brother and step-sister respectively.
It has been submitted that this is the case as at the time of the marriage of the visa applicant’s mother, both the visa applicant and the review applicant were adults who never resided with their step-siblings or functioned as a family subsequently. It was stated that the visa applicant lived on the west coast of the United States whilst her step-siblings lived on the east coast, with no familial bonds established. The review applicant pointed out that the visa applicant never took on her mother’s second husband’s name of Williams, she was never adopted, and there was no legal relationship either with her stepfather or her step-siblings.
The review applicant submitted that both the visa applicant’s mother and stepfather are now deceased. Given this, it was submitted that the visa applicant (and the review applicant) are no longer step-children of their late mother, and subsequently, the review applicant and visa applicant are no longer step-siblings of [Mr A] and [Ms B].
The review applicant submitted that she is the visa applicant’s only living immediate relative. She stated that both herself and the visa applicant are widowed without children, and both are financially independent.
The Tribunal has considered the testimony and submissions of the review applicant and the visa applicant. The Tribunal accepts their evidence as genuine and factual. The Tribunal accepts the visa applicant has had no regular contact or relationship as such with her step-siblings, with her mother marrying her stepfather when she was an adult. The Tribunal accepts the testimony of the review applicant and the visa applicant as honest, genuine, and reliable.
The Tribunal notes that the quality of the relationship between the visa applicant and her step-brother and step-sister is of no consequence in determining whether the visa applicant meets reg 1.15(1)(c). The question is simply one of fact: does the visa applicant have other living ‘near relatives’ – defined in reg 1.15 as a ‘parent, brother, sister, stepbrother or stepsister of the applicant’ who are not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, and are not usually resident in Australia?
Post-hearing the Tribunal has extensively considered the question as to whether or not the visa applicant’s stepbrother and stepsister remain living ‘near relatives’ for the purposes of this visa after the death of both the visa applicant’s mother and her stepfather.
The evidence before the Tribunal suggested, as was concluded by the delegate, that the visa applicant has a living stepbrother and stepsister. The review applicant has confirmed that [Mr A] and [Ms B] are residents of the United States, and are not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. This was reflected in the visa applicant’s own application.
The review applicant confirmed that [Ms A] and [Ms B] are, as far as she is aware, are still living. There is no evidence or claim to the contrary. There is no evidence or claim that either [Ms A] and [Ms B] are resident in Australia, and either an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
The determinative factor therefore becomes, for the purposes of this visa, does the visa applicant remain a step-sibling of [Mr A] and [Ms B] after the death of her mother and stepfather. If the step-relationship continues, then she does not meet the criteria for the grant of this visa. If the relationship however is severed, the evidence would then suggest she has no living near relatives (as defined in reg. 1.15) who are not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, and are not usually resident in Australia.
The claim of the review applicant before the Tribunal is the step-sibling relationship between the visa applicant and [Mr A] and [Ms B] was terminated upon the death of the visa applicant’s mother. The question before the Tribunal becomes does the step-sibling relationship between the visa applicant and [Mr A] and [Ms B] continue or terminate after the death of the visa applicant’s mother and her stepfather?
The Tribunal notes that there would appear to have been limited judicial consideration in the context of the Act regarding whether a step-parent and step-child relationship continues or ceases when the relevant marriage between the step-parent and the step-child’s biological parent ends (by death or divorce). The Tribunal would note that this issue would appear to have been considered more in the context of inheritance law rather than migration. The Tribunal notes this limited judicial consideration and has considered Departmental policy as well as dictionary definitions in making an assessment as to whether a step-relationship continues after the death of the relevant spouse or parent in a migration context.
In the context of migration proceedings, the Migration Regulations 1994 (Cth) (the Regulations) define the term ‘step-child’ but do not include a definition of other step-relationships. There is no case law before the Tribunal that specifically considered the definition of a step-brother or step-sister. However, there has been judicial consideration of the terms step-child and step-parent and the meaning of other step-relationships, such as step-brother, can be related to the to the definition of step-child.
The Tribunal notes in OZ v Minister for Immigration [2016] FCCA 1810, the applicant applied for an Other Family (Residence)(Class BU) visa which requires sponsorship by an Australian relative. The applicant's sponsor was the former spouse of the applicant's father and the Tribunal found that the sponsor was not a parent of the applicant at the time of application. The Court in this case did not identify jurisdictional error in the Tribunal's consideration and finding that the sponsor was not a parent of the applicant. The Court identified that the Regulations define step-child, but do not define step-parent. However, it was appropriate for the Tribunal to relate the meaning of step-parent to the meaning of step-child. The Court observed that '[t]he tribunal was required to consider the particular words in the statutory context in which it is found' and was guided by the dictionary definition of stepmother. However, the Tribunal notes that the Court did not consider whether there was a difference between the step relationship ending due to the relevant marriage ceasing at the time of death of a spouse as opposed to a divorce.
In Mercado v Minister for Immigration [2007] FMCA 1216, the applicant applied for an Other Family (Migrant) (Class BO) visa which was refused as the delegate was not satisfied that the visa applicant, who resided in the same country as her half-brother, was a remaining relative of the review applicant. In obiter, the Court noted that a 'half-brother relationship is permanent because of the genetic link whereas a step relationship is by its nature more transient and certainly not permanent'. The Tribunal considers this decision supports a view that the step relationship ceases when the underlying marriage ends whether by divorce or death.
Noting the lack of broader judicial definition of this issue from a migration context, the Tribunal has also considered both the relevant dictionary definitions as well as Departmental policy.
The Macquarie Dictionary defines:
·Stepbrother: 'One’s stepfather’s or stepmother’s son by a former union'
·Stepmother: 'A woman who is married to one’s father, after one’s mother has died or parents separated'
These definitions suggest to the Tribunal a temporal quality to step relationships is contingent on the existence of the underlying marriage. The Tribunal considers it can be inferred that ending of the marriage – whether through divorce or death, also ends the step-relationship.
Whilst Departmental policy is obviously not binding on the Tribunal, it appears to support this view, clearly stating that where a parent dies “Normally, if the relationship between the step-parent and the child’s parent ceases, the step-relationship between the step-parent and the child also ceases. The relationship may be severed by divorce or separation or because the parent has died.” (Policy – Migration Act – s5G – Relationships and family members – Child-parent relationships., 4 April 2025)
The Tribunal notes there is a divided position at common law as to whether the stepchild and stepparent relationship ceases upon the death of the relevant spouse/parent. The Tribunal notes the position in Re Burt [1988] 1 Qd R 23 that suggests the relationship continues. In Re Cook; ex parte C (1985) 156 CLR 249 Deane J stated in dissent that '[i]f the marriage remains undissolved at the time of death of the natural parent, the relationship of affinity between step-parent and stepchild will continue'. In Scott-Mackenzie v Bail [2017] VSCA 108 Deane J's view was cited with approval. This can be contrasted with the view in Re Danes [1989] 2 Qd R 236 that 'the status [of a stepchild] is lost upon the termination of the relevant marriage whether by death or dissolution'.
However, as outlined in OZ v Minister for Immigration [2016] FCCA 1810, reliance on case law from other statutory regimes such as succession law (as in the cases in the preceding paragraph) has limited utility in interpreting migration law. This aligns with the principles enshrined in SZTAL v MIBP [2017] HCA 34 at [14] and Project Blue Sky Inc v ABA (1998) 194 CLR 355: statutory interpretation centres on the text, read in context and with regard to purpose, and should not draw on other jurisdictions unless the statute permits it.
This has been an absorbing task for the Tribunal. There does not appear be any direct judicial consideration of whether a step-sibling relationship continues after the death of the relevant parent. The case law in relation to step-parent and step-child relationships ceasing upon death of the parent/spouse does not appear to be settled. Further, much of the case law on step-relationships arises in different statutory contexts, such as succession law, and given Oz and other relevant case law should be treated with caution in a migration context. The Tribunal considers that, taking into account the limited consideration to date regarding step-relationships regarding the Act, the plain language dictionary definitions (outlined previously) of the relevant terms, and Departmental policy, the Tribunal is ultimately supportive of the view, as asserted by the review applicant, that the support the step relationship between the review applicant and [Mr A] and [Ms B] ceased upon the death of her mother.

Subsequently , based upon all the evidence before it, the Tribunal is satisfied that the visa applicant has no ‘near relatives’ other than her sister, an Australian citizen usually resident in Australia, who is the review applicant. The visa applicant’s parents are both deceased. The visa applicant has no other brothers or sisters. The visa applicant has no children. The visa applicant’s stepparent is deceased. The Tribunal is satisfied on balance that the visa applicant’s stepsibling relationship with [Mr A] and [Ms B] ceased upon the death of her mother on 29 June 2019. The visa applicant made her application for this visa some 15 months after her mother’s death.
For these reasons, the Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is met.
Adopted child: reg 1.15(1)(d)
If the visa applicant is a child who has not turned 18 and has been adopted by an Australian citizen, permanent resident, or an eligible New Zealand Citizen, while overseas, reg 1.15(1)(d) requires that at the time of application the adoptive parent has been residing overseas for at least 12 months. This requirement does not apply in this case.
For the reasons set out above, the Tribunal is satisfied that the visa applicant is the remaining relative of an Australian Relative at the time of application and the time of decision for the purposes of cl 115.211 and cl 115.221.
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.
Date(s) of hearing: 11 March 2025
Representative for the Applicant: N/A