Kaur (Migration)

[2021] AATA 4088

Kaur (Migration) [2021] AATA 4088 (1 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Parveen Kaur
Master Armaan Singh

CASE NUMBER:  2001378

HOME AFFAIRS REFERENCE(S):          CLF2019/104479

MEMBER:David Crawshay

DATE:1 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 01 October 2021 at 9:50am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) visa – applicant’s sister has been living in the United Kingdom at the time of application – not usually resident in Australia – applicant has near relative who is offshore – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 360, 363

Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 835.212, 835.221

Social Security Act 1991 (Cth)

CASES
Hasran v MIAC [2010] FCAFC 40
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 January 2020 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 11 December 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicants are 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212, which requires an applicant to be a remaining relative of an Australian relative.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate found that there were near relatives of the first-named applicant (the applicant) who were not usually resident in Australia. The delegate also found that the secondary applicant, Master Armaan Singh, did not satisfy cl.835.321 because the applicant did not satisfy the criteria for the grant of a Subclass 835 visa and there was no evidence that he was able to meet the primary criteria for the grant of a Remaining Relative visa.

4. On the basis of information on the Department file showing that the applicant had near relatives other than near relatives who were usually resident in Australia, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act in the following relevant way:

   The Tribunal requests that you to provide evidence that you:

   ·were the remaining relative of an Australian relative under cl.835.212 of the Migration Regulations at the time you applied for the visa on 11 December 2019; and

   ·currently continue to satisfy the requirements of cl.835.212, pursuant to cl.835.221.

5. On 29 September 2021, the applicant through her representative responded via email. This email attached an undated letter of submissions written by the applicant that contained the following relevant information:

   ·     the applicant’s parents had four children, including the applicant, one brother and two sisters;

   ·     her father, Mr Gurmukh Singh is an Australian permanent resident and lives in Australia;

   ·     her mother, Ms Satwantpal Kaur was an Australian permanent resident until her death a few years ago;

   ·     her sister, Ms Darminder Kaur and Ms Kaur’s family are Australian citizens;

   ·     her brother, Mr Kiranpal Singh and Mr Singh’s family are Australian citizens;

   ·     her other sister, Ms Harpreet Kaur is a Singaporean citizen as well as being a permanent resident of the United Kingdom and of New Zealand;

   ·     Ms Harpreet Kaur is living in the UK, was previously living in NZ and would have moved to Australia on a permanent basis but for her son’s medical condition;

   ·     the medical condition suffered by Ms Harpreet Kaur’s son is said to be life-threatening and he is said to require daily treatment; and

   ·     Ms Harpreet Kaur is unable to move anywhere from the UK due to her son’s condition.

6. Other information was provided regarding the details of the applicant’s life in Australia, including that she had a son to her then-husband in [April 2012], that she is an early childhood educator and that she is the primary carer for her elderly father who is a heart patient.

7. While the applicant has provided a response within the prescribed period, the Tribunal considers that she has not provided the information that was sought in the Tribunal’s s.359(2) letter – that is, information that she was the remaining relative of an Australian relative at the time of application under cl.835.212 and currently continues to satisfy the requirements of cl.835.212.

8. Because the applicant has not provided the information requested in the Tribunal’s s.359(2) letter within the prescribed period and no extension has been applied for or granted (and see below), s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

9. In coming to this decision, the Tribunal has considered whether it should proceed in this way as opposed to adjourning the review under s.363(1)(b) in order to allow the applicant to provide further information to address the substantive issue revealed in its s.359(2) letter or to gather information in relation to a request for ministerial intervention. In relation to the latter, the Tribunal notes that the applicant made a request in her submissions letter for it “hold the decision” until April 2022 when her son turns 10 and may be eligible for Australian citizenship, and then recommend her case for ministerial intervention. To be clear, the Tribunal does not consider this request to “hold the decision” to be a request for additional time to provide information in response to its s.359(2) letter. The request to postpone is in relation to “the decision” and it is clear upon reading that the request is being made in order to facilitate the gathering of evidence in relation to a claim for ministerial intervention and not to provide information in response to the s.359(2) letter.

10. Having considered the information in front of it, the Tribunal finds that it is reasonable to proceed as it has. Firstly, and in relation to the substantive issue of whether she satisfies the Schedule 2 criteria, it considers that by her response the applicant has provided further proof of the fact that at all material times she has not been a remaining relative of an Australian relative and has in no way refuted evidence previously presented. Given this, the Tribunal is unable to identify how giving the applicant additional time would allow her to demonstrate that she has been a remaining relative at the relevant times. Secondly, and in relation to a request for ministerial intervention, the Tribunal considers that the applicant has not made such a request but has merely requested a pause in proceedings until such time as she feels she is able to make this request.

11. For these reasons, the Tribunal has decided not to move to adjourn the review under s.363(1)(b).

12. The applicant was represented in relation to the review by her registered migration agent.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The visa application was made on the basis that the applicant is the remaining relative of

    
    

    Ms Parminder Kaur, who the 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: 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).

15. In this case Ms Parminder Kaur is the applicant’s sister and was an Australian permanent resident at the time of application. Therefore, she is an Australian relative for these purposes.

    Is the applicant a remaining relative of an Australian relative?

16. To be granted a Subclass 835 visa the 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.835.212 and cl.835.221. “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 applicant and is “usually resident in Australia”.

17. The 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 applicant is an adopted child.

    The requirement to be a parent or sibling: r.1.15(1)(a)

18. The evidence clearly demonstrates that the Australian relative is the sister of the applicant. 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)

19. The dual factors of physical residency and intention are essential elements in the notion of “usually resides” for the purpose of r.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 r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

20. There is no evidence other than that the Australian relative is usually resident in Australia. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

    No near relatives: r.1.15(1)(c)

21. Regulation 1.15(1)(c) requires that the applicant have no “near relatives” except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

22. “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, step-parent (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.

23. In a Form 47OF application form dated 10 December 2019, the applicant listed her family members to include Ms Harpreet Kaur Bhumber. Ms Harpreet Kaur Bhumber was listed at that time as currently residing in London and as not being an Australian citizen, NZ citizen or Australian permanent resident.

24. As above, in response to the Tribunal’s s.359(2) letter of 16 September 2021, the applicant stated among other things that her sister, Ms Harpreet Kaur, was living in the UK and had previously lived in NZ. The Tribunal accepts that Ms Harpreet Kaur Bhumber and

    
    

    Ms Harpreet Kaur and are the same person.

25. The Tribunal has had regard to this evidence. It has considered that the applicant has not at any time provided any information to demonstrate that Ms Harpreet Kaur Bhumber usually resides in Australia.

26. Based on this evidence, the Tribunal finds that Ms Harpreet Kaur Bhumber, the applicant’s sister, has been living in the United Kingdom and has not been usually resident in Australia at the time of application or at the time of this decision.

27. For these reasons, the Tribunal is not satisfied there were no near relatives of the applicant other than those permitted by the regulations and therefore r.1.15(1)(c) is not met at the time of application or at the time of decision.

28. Because the applicant has not satisfied one of the cumulative requirements of r.1.15, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application or at the time of decision.

29. In relation to a request in the applicant’s undated submissions letter for the Tribunal to exercise its discretion to grant her the visa to stay with her family and her son, it notes that it has no such discretion to exercise this power under the terms of cl.835.212 or cl.835.221.

30. The applicant therefore does not satisfy cl.835.212 or cl.835.221.

31. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa.

32. It follows that the secondary applicant does not satisfy the requirement of cl.835.321 of being a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 835 visa, and there is no evidence to show that he is able to meet the primary criteria for the grant of a Remaining Relative visa.

33. In respect of the other visa subclasses, there is no material which would permit a finding that the applicants meet prescribed criteria for the visa sought. There is no evidence before the Tribunal that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicants are therefore not entitled to the grant of a Subclass 836 (Carer) visa.

34. The evidence before the Tribunal indicates that the applicant was born on 24 August 1975 and the secondary applicant on 7 April 2012. The Tribunal finds that the applicants are not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as they are not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicants meet the definition of “aged dependent relative” in r.1.03 for cl.838.212 of Schedule 2 to the Regulations.

    DECISION

35. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    David Crawshay
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    1.15     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).