Sethi (Migration) - [2022] AATA 2039

Sethi (Migration) [2022] AATA 2039 (21 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurinder Sethi
CASE NUMBER:  2003023
HOME AFFAIRS REFERENCE(S):          CLF2019/24260
MEMBER:Brendan Darcy
DATE:21 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 21 June 2022 at 1:44pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – dependent child – remaining relative of an Australian relative – usual residence in Australia – no near relative requirement – sibling in Canada – filial estrangement – sibling’s financial circumstance – no waiver available – compassionate circumstances – serious, ongoing and irreversible harm – applicant’s health condition – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cl 835.212
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 January 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 16 May 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.212.
The delegate refused to grant the visa on the basis that cl 835.212 was not met because the applicant did not meet the criterion of ‘Remaining Relative’ under subregulation 1.15(1)(c).
The applicant appeared before the Tribunal on 6 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Neerraj Kumar Sethi and the applicant’s sister, Ms Reetu Sethi.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
This application for review was lodged with the Department on 16 May 2019.
The visa application was made on the basis that the applicant is the remaining relative of Mr Neeraj Kumar Sethi, 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: reg 1.03. ‘Relative’…

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 Sethi (Migration)

Details

AGLC: Sethi (Migration) [2022] AATA 2039
Case: [2022] AATA 2039
Decision Date: 21 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review by Mr Sethi, who sought a Remaining Relative (Subclass 835) visa. The applicant claimed to be the remaining relative of his brother, Mr Neeraj Kumar Sethi, an Australian citizen. The core of the dispute concerned whether the applicant met the criteria for the visa, specifically the requirement that he and his spouse or de facto partner have no near relatives other than those usually resident in Australia and holding Australian citizenship or permanent residency.

The Tribunal was required to determine if the applicant satisfied subregulation 1.15(1)(c) of the Migration Regulations 1994. This subregulation mandates that an applicant must demonstrate that they, and their spouse or de facto partner (if any), have no near relatives except for those who are usually resident in Australia and are Australian citizens, Australian permanent residents, or eligible New Zealand citizens. The applicant's brother, Mr Sandeep Sethi, residing in Canada, was identified as a near relative who did not meet these criteria.

The Tribunal affirmed the delegate's decision to refuse the visa. It found that while the applicant's brother in Australia was an Australian relative, the applicant also had a brother, Mr Sandeep Sethi, residing in Canada. The Tribunal noted that Mr Sandeep Sethi was considered a near relative and his usual residence was not in Australia, nor was he an Australian citizen or permanent resident. Consequently, the applicant failed to satisfy the requirement under subregulation 1.15(1)(c). The Tribunal considered the applicant's health issues and the sponsor's offer of financial support, but these factors did not constitute grounds for a waiver or override the failure to meet the primary eligibility criterion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE This application for review was lodged with the Department on 16 May 2019. The visa application was made on the basis that the applicant is the remaining relative of Mr Neeraj Kumar Sethi, 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: reg 1.03. ‘Relative’ is also defined in reg 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 Neeraj Kumar Sethi is the applicant’s brother and an Australian citizen, and therefore is an Australian relative for these purposes. The sponsor was born in 1976 in the Republic of India. He first arrived in Australia in 2008 and became an Australian citizen in May 2013. The applicant was born on 10 May 1966 in India. The applicant first arrived in Australia on April 2019 while holding a visitor visa. According the applicant’s application form, he stated that the following were his relatives. · His sister, Ms Reetu Sethi, born on 10 July 2018; · His brother, Mr Sandeep Sethi, born on 17 November 1974; and· His brother, Nerraj Kumar Sethi, born on 17 February 1976. Each of them was born in India to the same parents. The application declared that the applicant’s parents were deceased; that he had never married or been in a de facto relationship; and that he had no other near relatives. It was further declared that the current residence for Sandeep Sethi is Canada and that he is not an Australian citizen, Australian permanent resident or New Zealand citizen. While the delegate was satisfied that Mr Sandeep Sethi meets the definition of near relative, Departmental records confirmed the applicant’s brother residing in Canada is not usually a resident in Australia. On 29 January 2020, the delegate then proceeded to refuse the visa on the grounds that the applicant did not meet subregulation 1.15(1)(c). This subregulation requires that the applicant demonstrate that he and his spouse or de facto partner (if any), have no near relatives other than near relatives who are usually resident in Australia and Australian citizens, Australian permanent residents or eligible New Zealand citizens. On 17 February 2019, the applicant validly applied for the delegate’s refusal decision to be reviewed by the Tribunal. Attached to the application for review was a copy of the decision record. On 2 June 2022, the applicant submitted a number of documents for the Tribunal to consider: · A letter from the applicant’s treating physician dated 26 May 2022 indicated he has multiple health problems, including labile uncontrolled hypertension (high blood pressure), deformities of upper limbs, and epidermolysis (skin disorder that caused the skin to become fragile); · A signed letter from the sponsor (undated) outlining his siblings’ circumstances. · A signed letter by the applicant dated 1 June 2006, indicating that he had no relatives living in India and that he has health and age issues whereby he cannot look after himself, and that returning to India would not be safe; · A signed statutory declaration from the sponsor dated 1 June 2022, indicating that the sponsor will be responsible for the applicant’s living and medical expenses; and· An email from the applicant’s brother residing in Canada, indicating that the applicant is like a brother to him but he is struggling to establish himself since migrating to Canada.

Ratio Decidendi

Legal Principle Established

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