Kong (Migration) - [2024] AATA 3133

Kong (Migration) [2024] AATA 3133 (27 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Sokunthea Kong
VISA APPLICANT:  Miss Sovanda Kong
CASE NUMBER:  2010236
HOME AFFAIRS REFERENCE(S):          OSF2018/028070
MEMBER:Justine Clarke
DATE:27 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 27 August 2024 at 3:36pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – remaining relative of an Australian relative – no near relatives – usually resident in Australia – family members living in Cambodia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 114.211, 115.211, 115.221, 116.211; 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 on 20 May 2020 by a delegate of the Minister for Home Affairs 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).
It is claimed that the review applicant and the visa applicant are sisters.
On 16 July 2018, the visa applicant, who is a national of Cambodia, applied for the visa. At that time, the visa applicant was 23 years of age. At the time of this decision, she is 29 years of age.
At the time the application for the visa was lodged, 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 (Remaining Relative) 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 review applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that cl 115.211 was not met because reg 1.15 was not met.
The review applicant was unrepresented in this review.
On 27 August 2024, the review applicant appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sam Bun Chhit (the review applicant’s husband) by video from the same location as the review applicant and from the visa applicant by telephone from Cambodia. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.…

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 Kong (Migration)

Details

AGLC: Kong (Migration) [2024] AATA 3133
Case: [2024] AATA 3133
Decision Date: 27 August 2024

CaseChat Overview and Summary

This matter concerned a review of a decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The visa applicant claimed to be the remaining relative of an Australian citizen, who was her sister. The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 115 visa.

The primary legal issues before the Tribunal were whether the visa applicant was a "remaining relative" of an "Australian relative" as defined by the Migration Regulations 1994. This involved assessing whether the Australian relative was "usually resident in Australia" and whether the visa applicant, along with their spouse or de facto partner, had no "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens. The Tribunal also needed to confirm the familial relationship between the visa applicant and the Australian relative.

The Tribunal found that the visa applicant and the Australian relative were biological sisters, satisfying the requirement that the Australian relative be a parent or sibling of the visa applicant. The Tribunal applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* to determine that the Australian relative was usually resident in Australia, considering both physical residency and intention. However, the decision text does not elaborate on the assessment of whether the visa applicant had any "near relatives" outside of Australia, which is a crucial component of the "remaining relative" definition.

Ultimately, the Tribunal affirmed the decision not to grant the visa applicant the Subclass 115 visa.

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 the review applicant, 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, the review applicant is the visa applicant’s sister (discussed below) and an Australian citizen (see certified copy of her certificate of Australian citizenship on the Department’s file). Therefore, the review applicant 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 (emphasis added). 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 review applicant has made consistent and repeated claims that the visa applicant is her sister. See, for example, her completed Form 40—Sponsorship for migration to Australia which is on the Department’s file and her signed, undated statement received by the Tribunal on 1 July 2020. The applicants also submitted copies of English translations of each of their birth certificates. The two birth certificates record each person as having the same father and the same mother. Based on the evidence, the Tribunal finds that the review applicant and the visa applicant are biological sisters. As the Australian relative in this case is the sister of the 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.

Decision

Reasons for decision

The Tribunal notes that Mr Chhit reviewed papers before him and held out for the Tribunal to view a form to sponsor an applicant for a Visitor visa and asked the Tribunal whether the Tribunal was considering that form. The Tribunal confirmed that it knew nothing about any application that may have been made by the visa applicant for a Visitor visa and that, in the present case, the Tribunal was only looking at the visa applicant’s application for an On Family (Migrant) (Class BO) visa, specifically a Remaining Relative visa. Mr Chhit also asked the Tribunal whether it could advise as to what form his wife could use to sponsor the visa applicant to Australia. The Tribunal explained that it could not provide legal or migration advice but encouraged the parties to seek such advice, noting that they had expended considerable funds to date without securing a successful outcome. DECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.Justine ClarkeMemberATTACHMENT - 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 applicant an Other Family (Migrant) (Class BO) visa.Justine ClarkeMemberATTACHMENT - 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).