Mohamed Hassan (Migration)

[2019] AATA 5233

Mohamed Hassan (Migration) [2019] AATA 5233 (27 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdiqani Mohamed Hassan

VISA APPLICANTS:  Ms Faduma Mohamed Hassan
Ms Halima Khalif Mohamed
Mr Abdikadir Khalif Mohamed
Master Abdisalam Ahmed Hussein

CASE NUMBER:  1728322

DIBP REFERENCE(S):  2011038210 OSF2011038210

MEMBER:Justin Owen

DATE:27 September 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 27 September 2019 at 12:18pm

CATCHWORDS
MIGRATION – Other Family (Migrant)(Class BO) visa – Subclass 115 (Remaining Relative) – primary applicant has near relatives not usually resident in Australia, not Australian citizens, permanent residents or eligible New Zealand citizens – secondary applicants dependent on review applicant and other family members for food, clothing and shelter – reliance greater than that of any other individual – ministerial referral – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.05A ,1.15, Schedule 1, Item 1123A, Schedule 2, cls 115.211, 115.221
Social Security Act 1991 (Cth)

CASES
Huynh v MIMA [2006] FCAFC 122
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 6 September 2017 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 22 August 2011. 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.115.211.

3. The delegate refused to grant the visas on the basis that cl.115.211 was not met because the primary applicant did not meet subclause 1.15(1)(c) because she had near relatives – her adult children Halima and Abdikar – who are not usually resident in Australia, and are not Australian citizens, Australian permanent residents or eligible New Zealand citizens.   

4. The review applicant appeared before the Tribunal on 10 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s sister Ms Rahma Mohamed Hassan and the review applicant’s brother Mr Rizaak Mohammed Hassan.  The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the visa applicant is the remaining relative of Mr Abdiqani Mohamed Hassan, 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: 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).

7. In this case Mr Abdiqani Mohamed Hassan is the visa applicant’s brother and an Australian citizen and therefore is an Australian relative for these purposes.

   Is the visa applicant a remaining relative of an Australian relative?

8. 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.

9. 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’.

10. 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.

    The requirement to be a parent or sibling: r.1.15(1)(a)

11. The Tribunal accepts the evidence before it that the Australian relative in this case is the brother of the applicant, r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

12. 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.

13. The Tribunal accepts on the evidence before it that the Australian relative is usually resident in Australia.  He arrived in Australia over a quarter of a century ago.  He lives in Granville with his wife and two children.  The Tribunal notes that the review applicant and Australian relative has spent some time overseas since his arrival in Australia but accepts his settled or usual abode is in Australia.       

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

    No near relatives: r.1.15(1)(c)

15. 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.

16. ‘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.

17. The initial question for the Tribunal is does the primary visa applicant have any near relatives except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.  The Tribunal notes it is an agreed fact that the primary visa applicant has three children that reside with her offshore in Malaysia.  The question for the Tribunal therefore becomes whether the children – who are also the secondary applicants – that have turned 18 years of age are ‘dependent’ on the primary visa applicant in accordance with regulation 1.05A.   If the secondary applicants do not meet the definition of being dependent on the primary visa applicant then they will not be regarded as a ‘dependent child’ of the applicant under regulation 1.15.  If they are 18 years of age and are not a ‘dependent child’ of the primary visa applicant then they will be regarded as ‘near relatives’ of the primary visa applicant.  As they would be ‘near relatives’ of the primary visa applicant that are not usually resident in Australia, Australian citizens, Australian permanent residents or eligible New Zealand citizens, the primary visa applicant would not meet r.1.15(1)(c).     

18. The primary visa applicant Faduma Mohamed Hassan is a 51 year-old woman.  The three secondary applicants are her children Halima Khalif Mohamed (aged 27 years old), Abdikadir Khalif Mohamed (aged 23 years old) and Abdisalam Ahmed Hussein (aged 18 years old). Halima and Abdikadir are the primary visa applicant’s biological children whilst Abdisalam was adopted by Faduma.  Abdisalam it is claimed was the child of Faduma’s sister Murayo Mohamed Hassan who died in a motor vehicle accident on 25 July 2004.  The Tribunal notes the death certificate (D1, Folio. 168).  The Tribunal on the evidence before it accepts that the primary visa applicant adopted her nephew after the death of her sister.  

19. According to the delegate’s decision the review applicant supplied the Tribunal the primary visa applicant Faduma Mohamed Hassan arrived in Malaysia with Abdisalam in December 2010; Halima arrived in Malaysia in May 2009 and Abdikadar arrived in Malaysia in March 2008.  It is the Tribunal’s understanding they have remained in Malaysia since this time.

20. The review applicant confirmed that the primary visa applicant is widowed.  He stated that she lost her husband in 2007.  There is no evidence before the Tribunal or claim made she has a spouse or de facto partner either at the time of application or the time of decision.

21. The Tribunal notes that the primary visa applicant is residing in Malaysia in an apartment with her three children, all of whom at the time of decision are over 18 years of age.  The Tribunal notes that at the time of application and the time of decision, the primary visa applicant is required to satisfy regulations 115.211 and 115.221 of the Migration Regulations which includes the requirement that the primary visa applicant is a remaining relative of an Australian relative for the applicant.  ‘Remaining Relative’ is defined in clause 1.15 of the Regulations and states that the primary visa applicant must have no near relatives other than near relatives who are usually resident in Australia; and are Australian citizens, permanent residents or eligible New Zealand citizens. 

22. The Tribunal notes that ‘near relative’ is defined in 1.15 of the Regulations as including ‘a child (including a step-child) of the applicant or of the applicant’s spouse or 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). 

23. As the secondary applicants Halima Khalif Mohamed and Abdikadir Khalif Mohamed were over the age of 18 at the time of application and the time of decision all three secondary applicants are over 18, in order to be a member of the family unit of the primary visa applicant, they must be dependent on their mother the primary visa applicant (the ‘family head’) in accordance with Regulation 1.05A.

24. The Tribunal has considered whether the secondary applicants are dependent on their mother the primary visa applicant in order to meet the definition of ‘dependent’ as outlined in r.1.05A (a): the definition of ‘dependent’ requires the secondary applicants are and have been for a substantial period immediately before that time wholly or substantially reliant on the primary visa applicant for financial support to meet their basic needs for food, clothing and shelter. In addition, the secondary applicant’s reliance on the primary visa applicant for this financial support must be greater than their reliance on any other person or source of support to meet those basic needs: r.1.05A(1)(a)(i) and (ii). Alternatively, a secondary applicant must be wholly or substantially reliant on primary visa applicant for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

25. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

26. The Tribunal has assessed the evidence before it and is not satisfied that the secondary applicants are wholly or substantially reliant on their mother the primary visa applicant for food, clothing and shelter

27. The review applicant stated in oral evidence that he and his sister Rahma had been and continued to be principal sources of financial support to the primary visa applicant.  The review applicant stated that he sends ‘everything’ financially to his sister in Malaysia.  He stated however that the three secondary applicants would say that they were supported by their uncle (the review applicant) and their aunt (the review applicant’s sister Rahma).  He explained this was how Somalian culture and family worked.  The review applicant also stated that his brother Rizaak contributed occasionally which the Tribunal accepts.

28. The review applicant stated that none of the secondary applicants are currently married or have partners.  The Tribunal accepts the claim. 

29. The review applicant said the monies and his sister provided to his sister is utilised for the accommodation and food.  The Tribunal notes that the secondary applicants reside at the same property with the primary visa applicant.  The Tribunal considers this support is being provided for the benefit of both the primary visa applicant and the secondary applicants.

30. The Tribunal notes that the primary visa applicant is not earning any income in Malaysia.  The review applicant stated that neither the primary visa applicant nor the three secondary applicants were working or had worked in Malaysia.   The Tribunal finds that none have been earning income whilst in Malaysia and are entirely dependent on the review applicant, his sister Rahma and wider family members for support for food, accommodation and clothing, notwithstanding the review applicant’s claim the primary visa applicant looked after clothing for the secondary applicants.   

31. The Tribunal notes the review applicant said he started providing financial support to his sister whilst she was still in Somalia but his personal financial support increased around 2008.  The Tribunal notes 2008 is the time the first secondary applicant Abdikadar arrived in Malaysia according to the decision record followed finally by the primary visa applicant who travelled to Malaysia in December 2010.  The review applicant said he travelled to Malaysia to see his nephew in 2008 or 2009 whilst the primary visa applicant did not arrive in Malaysia until, according to the delegate’s decision record, December 2010.  The Tribunal considers this as illustrative of the degree of support the review applicant has provided the secondary applicants for a considerable period of time.  

32. The Tribunal is of the firm view that the secondary applicants were and are dependent on the support of family members such as the review applicant, his sister Rahma and other family members for support during this period rather than upon the primary visa applicant.       

33. The review applicant said that roughly they were sending US$200-$300 a month to the primary visa applicant as well as other occasional payments.  The review applicant has provided significant documentation of financial support his sister Rahma and other family have provided to the (T1, Folios 25, 27, 29-36) primary visa applicant between February 2012 and 2019.  The Tribunal is satisfied that the review applicant, his sister Rahma and from time to time other family members have provided financial support from this time until the present day for accommodation, food and clothing.  The review applicant stated that some earlier records had gone missing after the agency looking after the transfers had closed and the records, despite attempts to procure them, were not available.  The Tribunal on the strength of the documentary evidence the review applicant has provided and his and his sister Rahma’s persuasive testimony is prepared to accept they were providing financial support to meet the primary visa applicant and the secondary applicant’s needs for accommodation, food and shelter for a significant period earlier, including at the time and prior to the lodgement of the visa application in August 2011. 

34. The review applicant provided the Tribunal a statutory declaration dated 18 September 2017 from his sister Rahma asserting the primary visa applicant was receiving by the time she arrived in Malaysia in December 2010 ‘enough money from us to allow her to support her whole family’ and pointing out that payments had been made by herself, the review applicant, two other brothers and her mother Shamso Sheikh Omar.  Rahma Mohamed Hassan in her statutory declaration states that no separate payments were sent to any of the three secondary applicants by any member of the family and the three secondary applicants received their financial support from their mother (the primary visa applicant)’s income ‘coming from us’.  Such evidence is consistent with that of the review applicant who stated that if asked the secondary applicants would state that the financial support they received was coming from their uncle and aunt. 

35. Ms Rahma Mohamed Hassan in her statutory declaration and in her oral evidence pointed out that since the arrival of the primary visa applicant in December 2010 no separate payments for support had been made to the secondary applicants and all funds were sent to the primary visa applicant.  The Tribunal accepts this claim. 

36. Ms Rahma Mohamed Hassan in her oral testimony and in her statutory declaration has asserted that the financial support the three secondary applicants enjoy for such things as food and accommodation come through the primary visa applicant.  The Tribunal notes that directing monies to an individual through a third party does not necessarily make that individual dependent upon that third party.   Whilst the Tribunal accepts that the monies for their food, accommodation and clothing are directed and have been directed since the time of application to the primary review applicant, the Tribunal considers the evidence strongly indicates that the monies are for both the primary visa applicant and the three secondary applicants.  The Tribunal considers the evidence firmly supports the conclusion that the secondary applicants are dependent not on the primary visa applicant but their uncle the review applicant, their aunt Ms Rahma Mohamed Hassan and other family members that have provided funds.  The funds for this support for accommodation, food and clothing for the secondary applicants are obviously directed to and indeed are bundled together with the funds to support accommodation, food and clothing for the primary visa applicant herself.  The Tribunal is of the opinion that whilst the secondary applicants receive their accommodation, food and clothing through funds directed to their mother the primary visa applicant, they are not wholly or substantially reliant on the primary visa applicant for financial support to meet their basic needs for food, clothing or shelter.  The Tribunal is furthermore not satisfied that their reliance upon the primary visa applicant is greater than any reliance by them on any other person, or source of support, for financial support to meet their basic needs for food, clothing and shelter.  The Tribunal considers the evidence clearly suggest their reliance instead is on their uncle the review applicant, their aunt Ms Rahma Mohamed Hassan and other family members that have provided them with substantial financial support (through the primary visa applicant) since the time of application and indeed earlier. 

1. The Tribunal finds the secondary applicants Halima Khalif Mohamed and Abdikadir Khalif Mohamed are not dependent on the primary visa applicant their mother Faduma at the time of application for financial support to meet their basic needs for food, clothing and shelter at the time of application.  The Tribunal finds the secondary applicants Halima Khalif Mohamed, Abdikadir Khalif Mohamed and Abdisalam Ahmed Hussein are not dependent on the primary visa applicant their mother Faduma at the time of decision for financial support to meet their basic needs for food, clothing and shelter.  The Tribunal is of the firm view on the evidence before it that they are receiving significant and substantial financial support from other family members such as their uncle the review applicant, their aunt Ms Rahma Mohamed Hassan and other family members.  The Tribunal considers the secondary visa applicants are dependent upon these individuals rather than their mother the primary visa applicant.   

2. The Tribunal does not consider the secondary visa applicants are, and for a substantial period immediately before that time, wholly or substantially reliant on the primary visa applicant for financial support to meet their basic needs for food, clothing and shelter.  The Tribunal finds r.1.05(a)(i) is not met.    The Tribunal does not consider the secondary visa applicants’ reliance on the primary visa applicant is greater than any reliance by the first person on any other person, or source of support – in particular the review applicant and Ms Rahma Mohamed Hassan - for financial support to meet their basic needs for food, clothing and shelter.  The Tribunal finds r.1.05(a)(ii) is not met. 

3. The Tribunal is not satisfied that the secondary visa applicants are dependent upon the family head, the primary visa applicant as required under regulation 1.05A (1).   

4. The Tribunal subsequently finds that at the time of application the secondary applicants Halima Khalif Mohamed and Abdikadir Khalif Mohamed are ‘near relatives’ of the primary visa applicant as they were over 18 years of age and not dependent upon the primary visa applicant. 

5. The Tribunal finds that at the time of decision the secondary applicants Halima Khalif Mohamed, Abdikadir Khalif Mohamed and Abdisalam Ahmed Hussein are ‘near relatives’ of the primary visa applicant as they are over 18 years of age and not dependent upon the primary visa applicant. 

6. The Tribunal considers the evidence clearly suggest their reliance instead is on their uncle the review applicant, their aunt Ms Rahma Mohamed Hassan and other family members that have provided them with substantial financial support (through the primary visa applicant) since the time of application and indeed earlier.   

7. On 25 September 2019 the review applicant through his representative provided a post-hearing submission (T1, Folio. 42-43) concerning the issue of dependency of secondary applicants where support is provided to the ‘main’ visa applicant.  The review applicant provided extracts from 1005086 [2012] MRTA 227 (25 January 2012).  The matter pertained to financial support a review applicant was providing to the primary visa applicant and whether the secondary visa applicants – the mother, brother and sister of the primary visa applicant – were dependent on the primary visa applicant for the purposes of r.1.12(1)(e)(iii) in accordance with the definition of dependent in r.1.05A(1).  The then MRT found the secondary visa applicants were more reliant on the primary visa applicant than the review applicant for their own living costs for their basic needs for food, clothing and shelter despite the source of the monies being provided for such costs being the review applicant, not the primary visa applicant.   It was submitted that the facts of the current Tribunal review were sufficiently within the scope of the reasons for the findings in 1005086 for the Tribunal to remit the decision.  The review applicant through his representative stated that there were no particular distinguishing factors that prevented the principles ‘which allowed remittance in 1005086 to be applied in this case.’ 

8. Although the Tribunal gives respect and regard to the views of other Tribunal Members, the Tribunal is not bound by precedent from previous Tribunal decisions. The Tribunal is not bound to reach the same conclusions or make the same findings as other Tribunal Members.   The Tribunal is conducting a de novo review on all the evidence before it.  The Tribunal considers the evidence, as outlined earlier in this decision record, firmly supports the conclusion that the secondary applicants are dependent not on the primary visa applicant but their uncle the review applicant, their aunt Ms Rahma Mohamed Hassan and other family members that have provided funds.  The Tribunal finds that whilst the secondary visa applicants receive their accommodation, food and clothing through funds directed to their mother the primary visa applicant, they are not wholly or substantially reliant on the primary visa applicant for financial support to meet their basic needs for food, clothing or shelter.  The Tribunal concludes from the evidence before it that the review applicant and Ms Rahma Mohamed Hassan are providing funds for the secondary visa applicants’ accommodation, food and clothing and those funds are being bundled together with the funds to support accommodation, food and clothing for the primary visa applicant herself. The Tribunal does not on the evidence before it consider the secondary visa applicants’ reliance on the primary vis applicant are greater than any reliance on any other person or source, including in particular the review applicant and his sister Ms Rahma Mohamed Hassan.    The Tribunal has considered the decision in 1005086 but rejects the assertion the remittance by the then MRT in that particular matter is reason for the Tribunal to set the delegate’s decision in this current review aside.       

9. Regulation 1.05A (1) may be also satisfied if the secondary applicants are wholly or substantially reliant on the other person – the primary visa applicant - for financial support because the applicant is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions (1.05A(1)(b)).  There is no evidence of any incapacity and none has been claimed.  The review applicant has confirmed in oral evidence that the secondary applicants have no mental or physical disabilities. The secondary applicants do not meet 1.05A (1) (b).

10. The Tribunal is satisfied the primary visa applicant has ‘near relatives’ who are not usually resident in Australia and are not Australian citizens, Australian permanent residents or eligible New Zealand citizens.  These were at the time of application her children Halima Khalif Mohamed and Abdikadir Khalif Mohamed who were residing with her in Malaysia and  at the time of decision her children Halima Khalif Mohamed,  Abdikadir Khalif Mohamed and Abdisalam Ahmed Hussein who reside with her in Malaysia. 

11. Given the primary visa applicant has adult children who are not usually resident in Australia and are not Australian citizens, Australian permanent residents or eligible New Zealand citizens, she is unable to meet r.1.15(1)(c).   As she does not meet r.1.15(1)(c) she is unable to meet either the time of application criteria cl.115.211 or the time of decision criteria cl.115.221.

12. 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.

13. 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 the time of decision for the purposes of cl.115.211 and cl.115.221.

14. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.

15. There is no evidence before the Tribunal that at the time of application the primary 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. The visa applicant is therefore not entitled to the grant of a Subclass 116 (Carer) visa.

16. The evidence before the Tribunal indicates that the visa applicant was born on 22 October 1967.  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.

17. In relation to the secondary applicants, the Tribunal notes that the secondary criteria in cl.115.3 must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria. Cl.115.311 of the Migration Regulations requires that the applicant is a member of the family unit and made a combined application with a person who satisfies the primary criteria in subdivision 115.21.

18. As the primary criteria was not met for the visa by the primary visa applicant, the secondary applicants fail to meet cl.115.311 and cl.115.321 at the time of application and the time of decision respectively.

19. The Tribunal has a great deal of sympathy for the review applicant and his broader family including the primary visa applicant and the secondary applicants.  The Tribunal accepts the evidence that the review applicant, his sister Rahma and other family members have been providing the primary visa applicant and the secondary applicants with substantial financial support for their accommodation, food and clothing since prior to the lodgement of the visa application and continue to do so today.  The requirements of the legislation are nevertheless are that the secondary applicants are dependent upon the family head – the primary visa applicant for their basic needs for food, clothing and shelter and that reliance is greater than that of any other individual or party.  The corroborative evidence before the Tribunal clearly indicates the secondary applicants’ reliance for their basic needs for accommodation, food and clothing has been on their family members in Australia who have consistently provided funds to the primary visa applicant for both their benefit as well as the benefit of the primary visa applicant.  It has not, despite her being the receiver of the monies from Australia, been upon the primary visa applicant.  The Tribunal notes that the surviving siblings of the primary visa applicant are all residing in Australia.  Many such as the review applicant have been in Australia for over a quarter of a century and have made their lives here as citizens.  The Tribunal notes that the primary visa applicant, a qualified school teacher in Somalis, has now been in Malaysia for almost nine years and some of the secondary applicants longer.              

20. The Tribunal has considered whether to refer this case to the Department for consideration by the Minister pursuant to s.351.  This legislation gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.  The Tribunal has carefully considered the review applicant’s circumstances and the claims made by the visa applicant.  The Tribunal has great sympathy for both parties given their circumstances.  The Tribunal considers the circumstances of the parties and considers they may be unique or exceptional.   The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and has decided to refer the matter to the Minister for his consideration. 

    DECISION

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

22. Having regard to the review applicant’s circumstances and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.   

    Justin Owen
    Senior 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).