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

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).
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.
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.
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…

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 Mohamed Hassan (Migration)

Details

AGLC: Mohamed Hassan (Migration) [2019] AATA 5233
Case: [2019] AATA 5233
Decision Date: 27 September 2019

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant seeking an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The visa applicant claimed to be the remaining relative of an Australian citizen brother. The decision under review affirmed the refusal of the visa. The case was heard by Senior Member Justin Owen of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the visa applicant met the definition of a "remaining relative" as defined in regulation 1.15 of the Migration Regulations 1994. This required determining if the Australian relative was "usually resident in Australia" and if the visa applicant, along with their spouse or de facto partner, had no "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal accepted that the Australian relative, the brother of the visa applicant, was a parent or sibling as required by regulation 1.15(1)(a). It also found, applying the principles from *Scargill v MIMIA* and other cases, that the Australian relative was usually resident in Australia, having lived there for over twenty-five years. However, the Tribunal noted that the visa applicant and their secondary applicants were dependent on the Australian relative for food, clothing, and shelter to a greater extent than any other individual. Despite affirming the decision not to grant the visa, the Tribunal considered the unique or exceptional circumstances of the case and, having regard to ministerial guidelines, decided to refer the matter to the Minister for consideration under section 351 of the Migration Act 1958, which allows the Minister to substitute a more favourable decision if it is in the public interest.

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 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). 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? 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. 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. Additional provisions apply if the visa applicant is an adopted child.The requirement to be a parent or sibling: r.1.15(1)(a) 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) 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. 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.

Decision

Reasons for decision

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

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 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).