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. The interpreter attended the hearing by video from a separate location.
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.
When the matter was before the Department, the applicants lodged a copy of both sides of the review applicant’s driver’s licence issued by the Queensland Government and provided details of her address in Queensland.
There is no evidence before the Tribunal to suggest that the review applicant is not usually resident in Australia.
Based on the evidence, the Tribunal is satisfied that the review applicant, being the Australian relative, is usually resident in Australia. Accordingly, reg 1.15(1)(b) is met.
No near relatives: reg 1.15(1)(c)
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.
‘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.
The Tribunal discussed with the review applicant, the visa applicant and Mr Chhit the delegate’s reasons for refusing to grant the visa to the visa applicant. The Tribunal asked the review applicant whether she was contending that there was something factually wrong in the delegate’s assessment of the evidence before them. She did not advance such an argument.
The Tribunal explained that because there was evidence that, at the time the visa applicant lodged the application for the visa on 16 July 2018, the visa applicant’s father, mother, one sister and two brothers were living in Cambodia and were Cambodian citizens who did not have the requisite connection with Australia, the visa applicant could not meet reg 1.15(1)(c) and accordingly would not be able to meet cl 115.211. The review applicant, visa applicant and Mr Chhit confirmed that they understood.
The review applicant stated that she thought that they had made a mistake as to which subclass to apply for and which form to use. She noted that her husband had undertaken the research but that perhaps the wrong form had been used.
The visa applicant said that this outcome was disappointing. She noted that she had been waiting a long time to find out that the wrong form had been used.
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.
CONCLUSION
For the reasons set out above, the Tribunal is not satisfied that, at the time of application on 16 July 2018, the visa applicant was the remaining relative of an Australian Relative for the purposes of cl 115.211. For this reason, the visa applicant does not meet the criteria for a Subclass 115 visa.
The Tribunal also explained to the parties that Class BO contains three subclasses: Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). The Tribunal explained that it had reviewed the facts with respect to the Subclass 114 (Aged Dependent Relative) and the Subclass 116 (Carer) visas to see whether the visa applicant may meet the criteria for one of those visas but that it had formed the view that she did not.
In respect of the other visa subclasses, no claims were made that, at the time of application on 16 July 2018, the visa applicant met the criteria for a Subclass 114 (Aged Dependent Relative) visa or a Subclass 116 (Carer) visa. In respect of these two other visa subclasses, there is no material which would permit a finding that the visa applicant meets the prescribed criteria for the visa sought.
For example, with respect to a Subclass 114 (Aged Dependent Relative) visa, the evidence before the Tribunal indicates that the visa applicant was born in 1994. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the 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 visa applicant meets the definition of the term ‘aged dependent relative’ in r 1.03 for cl 114.211 of Schedule 2 to the Regulations.
With respect to a Subclass 116 (Carer) visa, there is no evidence before the Tribunal that, at the time of application on 16 July 2018, the 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. Therefore, the visa applicant is not entitled to the grant of a Subclass 116 (Carer) visa.
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 Clarke
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).