LATCHMI (Migration)

[2019] AATA 1937

LATCHMI (Migration) [2019] AATA 1937 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  BUDEVI LATCHMI

VISA APPLICANTS:  ARCHANA ANURESH KUMAR
UVAAN TANUSH NARAYAN

CASE NUMBER:  1818394

HOME AFFAIRS REFERENCE:                2018 031271

OSF2018/031271

MEMBER:Lilly Mojsin

DATE:21 February 2019

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 21 February 2019 at 9:01am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) – Subclass 115 (Remaining Relative) – applicant to be the remaining relative of an Australian relative – visa applicant’s father resided in the same country – failed to provide information – no material which would permit a finding that the visa applicants meet the prescribed criteria – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C(1)
Migration Regulations 1994 (Cth), Schedule 1 Item 1123A, Schedule 2 Part 115, cls 115.211, 115.221, 115.312, 115.321, r 1.15(1)(c)

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 Immigration on 7 June 2018 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 20 February 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 (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.

3. The delegate refused to grant the visas on the basis that cls.115.211 and 115.221 were not met because the primary visa applicant’s father resided in the same country with the primary visa applicant.

4. On 31 January 2019 the Tribunal wrote to the applicants, pursuant to s.359A of the Act. The Tribunal invited the applicants to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review. In particular, the Tribunal invited the primary visa applicant to comment upon the information before it.

5. That information stated that in her application for a visa, the primary visa applicant’s sponsor, her mother, declared that her father Herendr Kumar resides in Fiji. It was explained that the information was relevant to the review because if the applicant for a remaining relative visa has a near relative ie a parent, her father, who is not usually resident in Australia, then the applicant is unable to meet r.1.15(1)((c).

6. The invitation was sent to the applicants’ address, being the address provided in connection with the application for review. The applicants were advised that, if written comments or response was not provided in writing by 14 February 2019, and no extension of time had been granted, the Tribunal may make a decision on the review without taking further steps to obtain their views on the information and they would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal did not receive a response to its letter of 31 January 2019 within the prescribed time for responding to the statutory invitation.

8. As the applicants failed to provide the information invited to be provided within the prescribed time, s.359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant's comments/response or to obtain the information invited to be provided.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The visa application was made on the basis that the primary visa applicant is the remaining relative of Budevi Latchmi, who the primary visa applicant claims is her 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).

10. 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 r.1.15 of the Regulations, which is set out in the attachment to this decision.

11. 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’.

12. 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.

13. In this review, Budevi Latchmi is the primary visa applicant’s mother who is an Australian citizen and she permanently resides in Australia. The Tribunal finds she is an Australian relative. Therefore, as the Australian relative in this review is the mother of the applicant, r.1.15(1)(a) is met.

14. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of r.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 r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

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

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 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.

18. The primary visa applicant resides in Fiji and is a Fijian citizen. Her father also resides in Fiji. Her father is a near relative. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

19. For the reasons set out above, the Tribunal is not satisfied that the primary visa applicant is the remaining relative of an Australian Relative at the time of application and at the time of decision for the purposes of cl.115.211 and cl.115.221.

20. For the reasons above, the primary visa applicant does not meet the criteria for a Subclass 115 (Remaining Relative) visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicants meet the prescribed criteria for the visa sought.

21. As cl. 115.211 and 115.221 in Schedule 2 to the Regulations are not met by the primary visa applicant, the Tribunal finds the secondary visa applicant cannot meet cl.115.321 and cl.115.312 and it follows that the criteria for the grant of a Other Family (Residence) visa is not met by the secondary visa applicant.

    DECISION

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

    Lilly Mojsin
    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).