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

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).
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.
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.
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.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Consideration of claims and evidence
The…

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 Khan (Migration)

Details

AGLC: Khan (Migration) [2022] AATA 2960
Case: [2022] AATA 2960
Decision Date: 15 July 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, Subclass 115 (Remaining Relative), made by a visa applicant who claimed to be the remaining relative of his sister, Mrs Asra Khan, an Australian citizen. The dispute centred on whether the visa applicant met the criteria for being a "remaining relative" under the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant was a "remaining relative" of an "Australian relative" as defined by the Regulations. Specifically, this involved assessing whether the Australian relative was usually resident in Australia and whether the visa applicant, along with his spouse, had no "near relatives" other than those who were usually resident in Australia and held Australian citizenship, permanent residency, or eligible New Zealand citizenship.

The Tribunal affirmed the decision not to grant the visa. It accepted that the Australian relative, Mrs Khan, was the sister of the visa applicant and was usually resident in Australia, having arrived in 2007, obtained permanent residency in 2010, and citizenship in 2012, and was settled in Kellyville with her family. However, the decision indicates that the primary criteria for the visa were not met by the primary visa applicant, leading to the secondary visa applicant also failing to meet the relevant clauses at the time of application and decision.

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 should be affirmed.Consideration of claims and evidence 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). 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? 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 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) 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 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Justin OwenDeputy PresidentATTACHMENT - 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 visa applicants Other Family (Migrant) (Class BO) visas.Justin OwenDeputy PresidentATTACHMENT - 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).