Habib (Migration) - [2019] AATA 2157

Habib (Migration) [2019] AATA 2157 (3 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  George Habib
CASE NUMBER:  1804271
HOME AFFAIRS REFERENCE:                CLF2017/37369
MEMBER:Lilly Mojsin
DATE:3 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

STATEMENT MADE ON 03 MAY 2019 AT 9:55AM
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – false or misleading information – element of fraud or deception – near relative – biological father – estranged – suffered abuse and neglect – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 835.212, 835.221, 835.223, 835.235; Schedule 4, PIC 4020
CASES
Batra v MIAC [2013] FCA 274
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant applied for an Other Family (Residence) (Class BU) visa on 19 May 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present review, 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).
The delegate refused the visa and found the applicant did not met cl. Clauses 835.212 and 835.223 and also did not meet cl.835.223(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet PIC 4020. The delegate determined the applicant had given false and misleading information within the meaning of s.5(1) of the Act and accordingly the applicant did not meet Public Interest Criterion (PIC) 4020.
The delegate further determined there were no compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting an Australian citizen, permanent resident, or eligible New Zealand citizen that would justify the grant of the visa.
The applicant appealed that decision attaching a copy of the delegate’s decision to his application for review.
The applicant appeared before the Tribunal on 4 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the and English languages.
The applicant was assisted in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the application form, the applicant declared that his father, Ragi Habib is an Australian Citizen, New Zealand Citizen or Australian Permanent Resident.
He also stated:
"I hear from community contacts that I have step siblings however I do not know any details about who they are, how many, what gender and what date of birth or where they live".
and
My father…

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 Habib (Migration)

Details

AGLC: Habib (Migration) [2019] AATA 2157
Case: [2019] AATA 2157
Decision Date: 3 May 2019

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought review of a decision affirming the refusal of his visa application. The dispute centred on the applicant's declarations regarding his biological father and step-siblings, and whether these declarations constituted false or misleading information, or involved an element of fraud or deception. The decision was made by Member Lilly Mojsin of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant had satisfied the criteria for a Remaining Relative visa, particularly concerning the definition of "near relative" and the requirement that the applicant have no near relatives other than those usually resident in Australia and who are Australian citizens, permanent residents, or eligible New Zealand citizens. A key issue was whether the applicant's biological father, despite being estranged and having allegedly abandoned the applicant, qualified as a "near relative" for the purposes of the visa application, and whether the applicant had made full and frank disclosure about his father's presence in Australia and his relationship with him.

The Tribunal affirmed the decision not to grant the visa. Member Mojsin considered the applicant's declarations that he had no knowledge of his father's whereabouts or details of his father's new family due to long-term estrangement. However, departmental records indicated the applicant's father had been in Australia during specific periods and had applied for visitor visas, stating he would reside with his daughter, who was also his contact person. While the applicant's migration agent suggested an error in transcribing information, the Tribunal noted that the applicant's father had been in Australia and had contact with his daughter during his visits. The Tribunal applied the definition of "near relative" under Regulation 1.15 of the Migration Regulations 1994, which includes parents. Despite the applicant's claims of estrangement and lack of contact, the biological father remained a "near relative" under the regulations. The Tribunal also noted that the applicant had referred his application to the Minister, citing his need to remain in Australia to care for his mother, but this referral did not alter the outcome of the visa refusal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant was assisted in relation to the review by his registered migration agent. CONSIDERATION OF CLAIMS AND EVIDENCE In the application form, the applicant declared that his father, Ragi Habib is an Australian Citizen, New Zealand Citizen or Australian Permanent Resident. He also stated:"I hear from community contacts that I have step siblings however I do not know any details about who they are, how many, what gender and what date of birth or where they live".andMy father abandoned us from a very young age and we never seeing him since, neither do we know his whereabouts". On Form 80 he declared that he had "unknown step-siblings". In a submission from his migration agent it was also written:The Applicant's biological father has abandoned his family: consisting of his wife (the Sponsor), his daughter, and son (the Applicant) long time ago, while the children were in their primary years, the applicant heard from community rumours that his father has remarried and has children from his second marriage, but the applicant does not know the whereabouts of his father or step-siblings. The applicant is unable to obtain any evidence of their whereabouts or details including the whereabouts of his father". The delegate stated that departmental systems showed that the applicant’s father was in Australia during the periods 3 March 2015 to 4 September 2015 and 6 September 2015 to 2 May 2016. During each of those periods, his father lodged an application for a Visitor visa and in each of those applications he claimed he would be residing with his daughter, Julianna Hilal. Julianna Hilal was also the authorized contact for receiving communication for each of these applications. The applicant’s declaration stated that he was unable to provide insight into the usual country of residence of his father or any information about his father's new family because he and his family had no contact with him since the applicant was young. On 25 August 2017, the applicant was invited by the Department to comment on the initial assessment that his claims to have had no contact with his father since the end of his parent’s marriage and his inability to provide any information regarding his "step-siblings". The migration agent stated that an error was made in the application form when she transcribed information provided by the applicant about his father’s status in Australia to a new copy of Form 470F. She provided a copy of a handwritten copy of Form 470F which, it was claimed, was completed by the applicant. In that form, his father was not declared to be an Australian Citizen, Australian permanent resident or New Zealand Citizen. By submission to the Department the applicant said that ·his father arrived at his daughter’s home unannounced in March 2015. Despite their strained relationship, she felt an obligation to welcome her father into her home. Their father spent the rest of his holidays in Australia with his brother Ralph Edward (aka Rifaat Habib). The father asked his daughter to extend his Visitor visa and she felt culturally obliged to do so. She respects her father but chose to keep a distance from him.·Ms Halal had contact with her father during his visits to Australia. ·The applicant resided with his father temporarily in the United Kingdom in 2003.

Decision

Reasons for decision

The applicant has requested that the Tribunal refer his application to the Minister. The Tribunal refers the application as the applicant lives with and assists in the care of his mother. He would not be able to do so if he is unable to remain in Australia. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Lilly MojsinMemberATTACHMENT - 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 applicant an Other Family (Residence) (Class BU) visa.Lilly MojsinMemberATTACHMENT - 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).