LIM (Migration)

[2019] AATA 2017

LIM (Migration) [2019] AATA 2017 (22 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KIAN PING LIM

CASE NUMBER:  1827782

HOME AFFAIRS REFERENCE:                CLF2018/47442

MEMBER:Lilly Mojsin

DATE:22 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 22 March 2019 at 8:42am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 835 (Remaining Relative visa) – applicant failed to attend tribunal hearing – applicant has relatives reside in Malaysia – r.1.15(1)(c) is not met– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65,359A,360, 362B,

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 835.212, 835.221

CASES
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Ignatious v MIMIA [2004] FCA 1395
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 3 September 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 May 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present review, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa that are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cls.835.212 and 835.221 were not met because the applicant’s father, mother and sisters reside in Malaysia.

4. The applicant appealed that decision to this Tribunal attaching a copy of the Department decision to his application for review.

5. On 30 January 2019 the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting the applicant to respond to information provided. The information stated that the applicant had 4 near relatives who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens. The applicant was advised that the information was relevant to the review because if the applicant for a remaining relative visa has a near relative i.e. a parent, brother, sister, step-brother or step-sister who are not usually resident in Australia then the applicant was unable to meet regulation 1.15(1)((c). The applicant was advised that if the Tribunal relied on this information in making its decision, the Tribunal may find that the applicant is unable to meet cl.835.212 of the regulations and affirm the decision under review.

6. The applicant responded on 15 February 2019 stating that he no longer had near relatives due to the nature and circumstances of the relationship and sought a hearing before the Tribunal.

7. The applicant was invited pursuant to s.360 of the Act to appear before the Tribunal on 21 March 2019 at 9.00 am. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

8. The applicant did not acknowledge the Tribunal correspondence. The applicant did not attend the scheduled Tribunal hearing on 21 March 2019 at 9.00 am. The applicant has not provided any reasons for his non-attendance at the scheduled hearing.

9. The Tribunal finds that the applicant is aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal, and the applicant responded to a s.359A invitation and has failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review, or provide any other supporting evidence.

10. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND FINDINGS

11. The visa application was made on the basis that the applicant is the remaining relative of Hooi Chyi LIM who the 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).

12. In this review Hooi Chyi LIM is the applicant’s sister and citizen and therefore is an Australian relative for these purposes.

13. To be granted a Subclass 835 visa the 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.835.212 and cl.835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

14. 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 applicant and is ‘usually resident in Australia’.

15. The 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 applicant is an adopted child.

16. As the Australian relative in this case is of the applicant, r.1.15(1)(a) is met.

17. 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.

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

19. Regulation 1.15(1)(c) requires that the applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

20. ‘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-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.

21. The information before the Department and the Tribunal is that the applicant’s relatives Ma Eng LIM  his father,  Kee Hua TEOH his mother, Hooi See LIM his sister and Hooi Ping LIM his sister all reside in Malaysia and are not Australian citizens, Australian permanent residents or eligible New Zealand citizens.

22. The applicant has submitted that he no longer has near relatives due to the nature and circumstances of the relationship. The applicant has not provided any further information and did not attend the hearing. The remaining relative definition does not permit the Tribunal to take into consideration the quality of the familial relationship. Without further information from the applicant the Tribunal is unable to be satisfied that the applicant no longer has near relatives, ie his mother, father and sisters who reside in Malaysia and are not Australian citizens, Australian permanent residents or eligible New Zealand citizens.

23. For these reasons, the Tribunal is not satisfied that there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

24. Therefore the Tribunal is not satisfied that the applicant is the remaining relative of an Australian relative at the time of application or at the time of decision for the purposes of cl.835.212 and cl.835.221.

25. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    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).