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

1. 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).

2. 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.

3. 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).

4. 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.  

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. This application for review was lodged with the Department on 16 May 2019.

8. 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).

9. 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.

10. The applicant was born on 10 May 1966 in India. The applicant first arrived in Australia on April 2019 while holding a visitor visa. 

11. 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.

12. Each of them was born in India to the same parents.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. On the day of the scheduled hearing, the applicant submitted an updated statement indicating that he feared returning to India due to criminal and/or terrorist activities in his home city of Moga in the Indian state of Punjab. Attached were a number of recent media reports outlining arrests of ‘gangsters’ by the authorities in connection with a leading politician in Punjab, and reports of violent crime in Moga.

    Is the applicant a remaining relative of an Australian relative?

20. 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 reg 1.15 of the Regulations, which is set out in the attachment to this decision.

21. 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’.

22. 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.

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

23. The applicant and the sponsor claimed to be in a sibling relationship.

24. The Tribunal has considered the evidence on the applicant’s Departmental file and it also received oral evidence from the applicant, the sponsor and the witness (the applicant’s sister) about the applicant’s near relatives. 

25. Based on the available evidence, the Tribunal accepts the applicant has never married or lived in a de facto relationship, and that he has no children. It accepts that both his parents have passed away. With no evidence to the contrary, it also accepts that the applicants near relatives include the sponsor, the witness, and his brother living in Canada, and that there are no further siblings, including step-siblings, to consider in this matter.

26. As the Australian relative in this case is the brother of the applicant, Mr Neeraj Kumar Sethi, reg 1.15(1)(a) is met.

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

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

28. Taking into the account the sponsor’s migration history and citizenship status, and with no evidence to the contrary, the Tribunal accepts the sponsor is ‘usually resident in Australia’.

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

    No near relatives: reg 1.15(1)(c)

30. Subregulation 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.

31. ‘Near relative’ for these purposes is defined in reg 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.

32. Noting its findings above under subregulation 1.15(1)(b), the Tribunal accepts the applicant’s sponsor who is a near relative is usually resident in Australia and is an Australian citizen.

33. As outlined above, the applicant’s sister who was a witness at the scheduled hearing is an Australian citizen and was found to have been a usual resident in Australia.  On file is a copy of the witness’ Australian passport issued on 16 October 2018. With no evidence to the contrary, the Tribunal accepts the applicant’s sister is a near relative, who is usually resident in Australian, and is an Australian citizen.

34. However, the evidence, including the oral evidence, is that the applicant’s other sibling is a citizen of India who has permanent residential status in Canada. He is not an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen; and that he had been usually residing in Canada, not Australia.

35. At the scheduled hearing, the Tribunal enquired into the reasons the parties believe this specific subregulation had been misapplied.

36. The parties provide arguments that the applicant and his sibling living in Canada did not ‘have good understanding’ or that they were somewhat estranged. The Tribunal explained that any accepted filial estrangement between the applicant and near relatives was not a relevant consideration under the definition of ‘remaining relative’.

37. It was also claimed the sibling in Canada was not a financial or stable situation in which he could support the applicant. Furthermore, it was claimed that the applicant required the assistance of his usually resident Australian relatives for his multiple health complications and everyday activities such as personal hygiene, toileting, eating and meeting appointments. Another claim was that if the applicant returned to India, his health and safety would be compromised, not least because of the prevalence of violent crime in his home city of Moga.

38. In this regard, the Tribunal explained that there was no waiver of subregulation 1.15(1)(c) on the grounds of compelling or compassionate circumstances, either at the time of application or at the time decision. 

39. It was also argued that the Tribunal should consider that the balance of the applicant’s near relatives were now living in Australia, despite his brother being a near relative living outside of Australia. However, the requirement under subregulation 1.15A(1)(c), is for the applicant to have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

40. Although the Tribunal has sympathy for the applicant and his family’s circumstances, the evidence before it is that, at the time of lodging this application for a Remaining Relative visa, the applicant has near relative who is not usually resident and who is not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

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

    Adopted child: reg 1.15(1)(d)

42. If the applicant is a child who has not turned 18 and has been adopted by an Australian citizen, permanent resident or an eligible New Zealand Citizen, while overseas, reg 1.15(1)(d) requires that at the time of application the adoptive parent has been residing overseas for at least 12 months. This requirement does not apply in this case.

43. Therefore, reg 1.15(1)(d) is not met.

44. As the applicant has failed to satisfy the meaning of ‘remaining relative’ as set out in regulation 1.15, the criteria of Clause 835.212 in Schedule 2 of the Regulations is not met

    Ministerial intervention recommendation

45. During the hearing, the Tribunal expressed its sympathy regarding the applicant’s inability to meet subclause 835.212, and invited them to consider whether this is an appropriate matter to refer to the Minister for consideration in the hopes that a favourable decision be substituted pursuant to the powers in s.351 of the Act.

46. Having assessed their oral testimony and the submitted written and documentary evidence, the Tribunal considers there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian family unit.

47. During the hearing, the parties explained to the Tribunal that it was not appropriate or suitable given the applicant’s disability and frailty for him to reside with his brother in Canada – the only relative of the applicant not residing in Australia. It was argued that his brother was struggling to find his feet in that country since migrating there.

48. After the scheduled hearing, the parties later submitted a number of documents for the Tribunal’s consideration in recommending a referral to the Minister. This included a medical certificate dated 7 June 2022 pertaining to the visa applicant indicating he is a wheelchair bound person with multiple chronic health problems, a blistering skin disorder and a deformity of his upper limbs and that his conditions will worsen over time.  

49. Also attached were statutory declarations signed by the applicant’s Australian citizen brother, Nerraj Kumar, and his Australian citizen sister, Reetu. These indicate that the visa applicant lives with his Australian citizen siblings in Melton West where he receives care and supervision. His sister indicated that she takes full responsibility for his medical and living expenses in Australia while working as a hairdresser. Should the applicant return to India, the applicant would not receive any familial care in a country where the social services for the frail and disabled is very limited and where the applicant’s safety would be seriously compromised. 

50. There is nothing to suggest the Australian citizen siblings of the applicant have not been, and are not, committed and conscientious in their care responsibilities towards the applicant. With no evidence to the contrary, the Tribunal accepts the circumstances supported by the medical, documentary, written and oral evidence presented to it in this matter, and it accepts that the applicant has a set of unique health problems whereby he requires assistance for everyday activities, and that these problems will deteriorate into the near and foreseeable future.

51. The Tribunal also notes the parties’ observation that the subclause and regulation relating to the definition of a remaining relative that was under review in this matter did not account for the balance of family members residing in Australia or that waiver of part (1)(c) of regulation 1.15 requiring 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. This lack of flexibility, it was argued, created unintended consequences whereby the subregulation placed too high a threshold on Australian citizens and families would be separated from otherwise worthy or vulnerable near relatives when there were compelling or compassionate circumstances to consider.

52. The country information collated in the Department of Foreign Affairs and Trade (10 December 2020) on India indicates that Indian law does cover situations where discrimination on various grounds based on disability; that there are large disparities between health services and outcomes of each state, and between urban and rural areas; and there is low public health investment. It mentions that the security situation in India varies over time and from place, but civil unrest, including violent riots, is not uncommon, and that most Indians live their lives with a relatively moderate risk of criminal violence. Given the applicant’s vulnerabilities in returning to India without any family members, the available country information provides compelling reasons to support, not just the applicant’s personally held fears in returning to India, but there are some actual reasons for those fears.

53. Cumulatively considered, should the applicant - who receives quality care by his Australian citizen siblings - not be considered for a visa by the Minister and return to India, such a situation will have a serious, ongoing and irreversible impact on the physical health and safety of the applicant, as well as the mental health of the parties. This adverse impact amounts to a continuing emotional and psychological hardship on this Australian family unit, which is inclusive of Australian citizens.

54. Having had regard to all relevant factors, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    Conclusion

55. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application, pursuant to clause 835.212

56. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa.

57. With regards to the applicant being eligible for a Class BU Subclass 838 Aged Dependent Relative visa, the Tribunal notes the applicant was born in May 1966 and has not reached pensionable age, as being defined as the eligible age for the Age Pension payment, according the Social Security Act 1991[1]. Therefore, the applicant would not be eligible for this visa.

    [1] >

    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.

1. As this is a situation that requires a resolution, the Tribunal recommends the parties consider requesting the Minister to personally intervene in this matter.

   DECISION

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

   Brendan Darcy
   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).