Khan (Migration)

[2022] AATA 2960

Khan (Migration) [2022] AATA 2960 (15 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Asra Khan

VISA APPLICANTS:  Mr Syed Okasha Nadeem
Mrs Bisma Ali

CASE NUMBER:  2110189

HOME AFFAIRS REFERENCE(S):          OSF2018/028195

MEMBER:Deputy President Justin Owen

DATE:15 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 15 July 2022 at 12:26pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – remaining relative of an Australian relative – near relative – spouse’s relatives reside in Pakistan – spouse’s dependence of the primary visa applicant’s family – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 115.211, 115.221, 115.311, 115.321; rr 1.03, 1.15
Social Security Act 1991

CASES

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 

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 16 June 2021 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s. 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 2 October 2018. 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 applicants are 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.

3. The delegate refused to grant the visas on the basis that cl. 115.211 was not met because the primary visa applicant did not meet subclause 1.15(1)(c) because his spouse, the secondary visa applicant, has near relatives – her three brothers and her step-mother – who are not usually resident in Australia, and are not Australian citizens, Australian permanent residents, or eligible New Zealand citizens.  

4. The review applicant appeared before the Tribunal on 20 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s father, Mr Nadeem Ahmed and mother, Mrs Nadra Nadeem.  The visa applicant declined the invitation to hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The review applicant was represented in relation to the review.

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

   Consideration of claims and evidence

7. The visa application was made on the basis that the visa applicant is the remaining relative of Mrs Asra Khan, who the visa applicant claims is his 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).

8. In this case, Mrs Asra Khan is the visa applicant’s sister and an Australian citizen and therefore is an Australian relative for these purposes. 

   Is the visa applicant a remaining relative of an Australian relative?

9. 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.

10. 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’.

11. 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)

12. The Tribunal accepts the evidence before it that the Australian relative in this case is the sister of the primary visa applicant: reg. 1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: reg. 1.15(1)(b)

13. 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.

14. The Tribunal accepts on the evidence before it that the Australian relative is usually resident in Australia.  She arrived in Australia in 2007, acquired Australian permanent residency in March 2010 and Australian citizenship on 2 February 2012.  She is a chartered accountant and lives in Kellyville with her husband and children.  The Tribunal is satisfied the Australian relative is settled and her usual abode is in Australia.      

15. As the Australian relative is usually resident in Australia, reg. 1.15(1)(b) is met. 

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

16. 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.

17. ‘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, 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.

18. In his application form, the primary visa applicant stated that his father Mr Nadeem Ahmed, mother Mrs Nadra Nadeem, brother Mr Syed Taha Nadeem and sister (the review applicant) all reside in Australia.  The primary visa applicant’s parents as well as the review applicant all attended the Tribunal’s hearing and provided oral testimony.  The primary visa applicant’s brother also attended as an observer.  The visa applicant has nominated no other family members.  The Tribunal is satisfied that the primary visa applicant himself has no near relatives other than those that are usually resident in Australia and are Australian citizens. 

19. The Tribunal notes however that reg. 1.15(1)(c) requires not only the visa applicant, but their spouse or partner (if any) also have no near relatives, other than near relatives, who are usually resident in Australia and who are Australian permanent residents, Australian citizens, or eligible New Zealand citizens.

20. At the hearing the review applicant confirmed in her oral testimony that the primary visa applicant’s spouse, Mrs Bisma Ali who is also the secondary visa applicant, has three brothers that are Pakistani nationals: Mr Waqas Ali, Mr Afaaq Ali and Mr Sufyan Ali.  This information was reflected in the primary visa applicant’s visa application as well as the delegate’s decision record the review applicant provided the Tribunal.  The review applicant submitted that at least one of the brothers still resides in Pakistan whilst the others have sought employment elsewhere, with one already having moved to Saudi Arabia.   

21. The review applicant also confirmed in oral testimony that the primary visa applicant’s spouse’s step-mother, Ms Saeeda Safdar Ali, is also a Pakistani national residing in Pakistan. 

22. The review applicant, noting the delegate had also refused the visa application on the basis they were not satisfied of the deaths of the secondary visa applicant’s – Mrs Bisma Ali’s – parents, provided correspondence from the Pakistani authorities that states the secondary visa applicant’s father deceased in February 2016 and her mother in December 1997.  For the purposes of this application, the Tribunal accepts the review applicant’s claim that the secondary visa applicant’s parents are deceased. 

23. The evidence before the Tribunal, which the Tribunal notes is not contested by the review applicant, is that the primary visa applicant’s spouse Mrs Ali has three brothers and a step-mother who are all Pakistani nationals.  For the purposes of reg. 1.15, they are defined as ‘near relatives’ of the visa applicant’s spouse.  None are usually resident in Australia.  None are Australian citizens, Australian permanent residents, or eligible New Zealand citizens.

24. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore reg. 1.15(1)(c) is not met.

25. As the primary visa applicant does not meet the requirements of reg. 1.15(1)(c), they subsequently do not meet the definition of a remaining relative in reg. 1.15. 

26. Given the primary visa applicant does not meet reg. 1.15 and the definition of a remaining relative, they do not meet the requirements of cl. 115.211 at the time of application.  They continue to not meet the requirements at the time of decision and therefore do not meet cl. 115.221.

27. At the hearing, the review applicant spoke at great length about the application before the Tribunal.  She stated that she had not considered the family of her brother’s spouse, Mrs Ali, was relevant when the Remaining Relative visa application for her brother was lodged some four years ago. 

28. The review applicant stated that the primary visa applicant’s spouse Mrs Ali had only very occasional contact with her three brothers who are each married and with their own responsibilities.  Similarly, she stated Mrs Ali’s step-mother lived separately in Pakistan with her own siblings and her aged mother, having little regular contact or involvement with her.  It was submitted that Mrs Ali’s own family provide her with little support. 

29. The review applicant has provided considerable evidence of her own father’s financial support for the primary visa applicant’s spouse Mrs Ali over some years.  It was submitted that the review applicant’s father, Mr Nadeem Ahmed, has acted as the guardian of Mrs Ali since early 2016.  Mr Ahmed provided similar testimony at the hearing.  The Tribunal accepts that Mr Ahmed has been providing the primary visa applicant’s spouse Mrs Ali with ongoing support since early 2016 as has been claimed. 

30. The review applicant, Mr Ahmed and Mrs Nadeem all attested to the strong financial and emotional dependence of the primary visa applicant’s spouse Mrs Ali, on their family.

31. The Tribunal accepts that the primary visa applicant’s spouse Mrs Ali has a strong link to the review applicant and her family.  The Tribunal accepts that the review applicant’s family provides Mrs Ali with financial and emotional support as claimed.  The Tribunal, as it explained to the review applicant and her family at the hearing, is required to make its decision on the requirements set out in the Regulations.  The quality of the relationship the primary visa applicant’s spouse Mrs Ali has with her three brothers and step-mother is not relevant to the Tribunal’s assessment; nor is the quality of the relationship she has with the review applicant’s family.  The question before the Tribunal is simply a question of fact: does the primary visa applicant’s spouse Mrs Ali have any near relatives that are not usually resident in Australia and are not Australian citizens, Australian permanent residents, or eligible New Zealand citizens.  The answer is in the affirmative: she has three brothers and a step-mother that are all Pakistani nationals with none usually resident in Australia or holding Australian citizenship, permanent residency, or are eligible New Zealand citizens.  As the Tribunal explained at the hearing, it does not have the ability to exercise a waiver of this requirement on the basis of the quality of the primary visa applicant’s spouse, Mrs Ali’s relationship either with her ‘near relatives’ offshore, or her relationship with the review applicant’s family in Australia. 

32. The Tribunal has sympathy for the review applicant and her family. The Tribunal noted the review applicant also provided to the Tribunal a Birth Certificate from Maroof International Hospital in Islamabad, Pakistan for Master Arish Okasha Nadeem who was born to the primary visa applicant and his spouse Mrs Ali on 2 June 2020 and is a Pakistani national. They are obviously keen to reunite with their family in Australia.  The Tribunal has no discretion however to waive the requirements in this matter.  

33. For the reasons set out above, the Tribunal is not 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.

34. For the reasons above, the visa 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 visa applicant meets prescribed criteria for the visa sought.

35. There is no evidence before the Tribunal that at the time of application the primary visa applicant claimed to be a carer of an Australian relative, as required by cl. 116.211, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123A(3)(c) of Schedule 1 to the Regulations. The visa applicant is therefore not entitled to the grant of a Subclass 116 (Carer) visa.

36. The evidence before the Tribunal indicates that the primary visa applicant was born on 11 April 1987.  The Tribunal finds that the primary visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the primary visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the primary visa applicant meets the definition of the term ‘aged dependent relative’ in reg. 1.03 for cl. 114.211 of Schedule 2 to the Regulations.

37. In relation to the secondary visa applicant Mrs Ali, the Tribunal notes that the secondary criteria in cl. 115.3 must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.  Clause 115.311 of the Regulations requires that the applicant is a member of the family unit and made a combined application with a person who satisfies the primary criteria in subdivision 115.21. 

38. As the primary criteria was not met for the visa by the primary visa applicant, the secondary visa applicant Mrs Ali fails to meet cl. 115.311 and cl. 115.321 at the time of application and the time of decision respectively. 

    decision

39. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Justin Owen
    Deputy President

    
    

    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).