Larkins (Migration) - [2021] AATA 1170

Larkins (Migration) [2021] AATA 1170 (15 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Wanna Li Larkins
VISA APPLICANTS:  Miss Qianru Li
Mr Zhaohui Li
CASE NUMBER:  1918004
DIBP REFERENCE(S):  OSF2010/072196
MEMBER:Justin Owen
DATE:15 February 2021
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 February 2021 at 1:50pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –115(Remaining Relative visa)– secondary applicant is over 18 years of age – not meeting the definition of ‘dependent’ at r.1.05A – secondary applicant is not a ‘member of the family unit’ of the primary visa applicant at the time of decision – visa applicant has a ‘near relative’–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 376
Migration Regulations 1994, rr 1.03, 1.12, 1.15, Schedule 1, Schedule 2, cls 115.211, 115.221, 115.321

CASES
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 Immigration on 13 May 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 22 June 2010. 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 (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.115.321.
The delegate refused to grant the visas on the basis that cl.115.321 was not met because she was not satisfied the secondary applicant, Miss Qianru Li, was a ‘member of the family unit’ (as defined at Regulation 1.12) of the primary visa applicant, Mr Zhaohui Li, at the time of decision. The delegate refused to grant the primary visa applicant Mr Zhaohui Li, the visa on the basis that cl.115.221 was not met because she found the primary visa applicant had a near relative – being the secondary applicant – who was not usually resident in Australia and not an Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time of decision.
The review applicant Mrs Wanna Li Larkins appeared before the Tribunal on 20 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sister of both the review applicant and the primary visa applicant Ms…

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 Larkins (Migration)

Details

AGLC: Larkins (Migration) [2021] AATA 1170
Case: [2021] AATA 1170
Decision Date: 15 February 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The primary applicant sought to migrate to Australia, claiming a relationship with an Australian citizen sister, Mrs Wanna Li Larkins. A secondary applicant, the primary applicant's 26-year-old daughter residing in the People's Republic of China, also sought to migrate as a dependent. The review applicant was Mrs Li Larkins, the Australian citizen sister. The decision was made by Senior Member Justin Owen of the Tribunal.

The central legal issues before the Tribunal were whether the secondary applicant, aged 26, qualified as a ‘dependent’ of the primary applicant at the time of the decision and for a substantial period prior. If the secondary applicant was not a ‘dependent’, the Tribunal had to determine if she was a ‘member of the family unit’ of the primary applicant. Crucially, if the secondary applicant was neither a ‘dependent’ nor a ‘dependent child’, the Tribunal had to consider if she was a ‘near relative’ of the primary applicant, which would impact the primary applicant's eligibility under regulation 1.15(1)(c) of the Migration Regulations 1994.

The Tribunal reasoned that for the secondary applicant to be considered a ‘dependent’ under regulation 1.05A, she would need to have been dependent for a substantial period. The definition of ‘near relative’ in regulation 1.15(2) includes a child who has turned 18 and is not a ‘dependent child’. The Tribunal found that the secondary applicant, being over 18 and not meeting the definition of ‘dependent’, was therefore a ‘near relative’ of the primary applicant. As the primary applicant had a near relative (her daughter) who was not usually resident in Australia and was not an Australian citizen, permanent resident, or eligible New Zealand citizen, the primary applicant failed to satisfy regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the Other Family (Migrant) (Class BO) visas to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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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 primary visa applicant is the remaining relative of Mrs Wanna Li Larkins, who the primary 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: 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). The secondary applicant claimed to be ‘dependent’ upon the primary visa applicant and subsequently not a ‘member of the family unit’ of the primary visa applicant as defined at r.1.12 and a ‘near relative’ of the primary visa applicant. In this case Mrs Wanna Li Larkins is the primary visa applicant’s sister and an Australian citizen and therefore is an Australian relative for these purposes. Mrs Li Larkins is the ‘review applicant’ in this review. Regulation 1.15(1) requires that a visa applicant has 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 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. The issues before the Tribunal are, is the secondary applicant, who is the 26-year old daughter of the primary visa applicant living in PR China, a ‘dependent’ of the primary visa applicant at the time of decision and for a ‘substantial period’ previous to this time. If the secondary applicant is found not to be a ‘dependent’ as defined at regulation 1.05A of the primary visa applicant, then he will not be considered a ‘member of the family unit’ of the primary visa applicant as defined at regulation 1.12. If she is found not to be a ‘member of the family unit’ of the primary visa applicant, then she will not satisfy cl.115.321. If the secondary applicant is not found to be a ‘dependent’ or a ‘dependent child’ of the primary applicant as defined at regulation 1.03, and instead found to be a ‘near relative’ of the primary visa applicant, the primary visa applicant will subsequently not meet reg.1.15(1)(c) that requires that at the time of decision, an applicant must continue to have no near relatives, other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens. REASONSSecondary applicant Ms Qianru Li 115.32 Criteria to be satisfied at time of decision

Decision

Reasons for decision

The evidence before the Tribunal indicates that the primary visa applicant was born on 30 December 1959. 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 r.1.03 for cl.114.211 of Schedule 2 to the Regulations.DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Justin OwenSenior MemberATTACHMENT - 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 OwenSenior MemberATTACHMENT - 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).