SHARMA (Migration) - [2019] AATA 2878

SHARMA (Migration) [2019] AATA 2878 (15 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  KHUSHMILA SHARMA
Master Pranay Prasad MAHARAJ
CASE NUMBER:  1822852
HOME AFFAIRS REFERENCE:                CLF2012/86897
MEMBER:Lilly Mojsin
DATE:15 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Statement made on 15 March 2019 at 9:53am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – near relative offshore – applicant’s spouse’s sibling offshore – no discretion for tribunal to consider quality of familial relationship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994, Schedule 2, cls 835.212, 835.221, rr 1.03, 1.15

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 Immigration on 20 July 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visa on 30 April 2012.
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 applicants are 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 (the Regulations).
The delegate refused to grant the visa on the basis that cl.835.212 and cl.835.221 was not met because the applicant’s spouse Manjit Singh Chopra, has a near relative, his sister Prakash Kaur Hira, who is not usually resident in Australia and is not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The applicants appeared before the Tribunal, by telephone, on 15 March 2019, to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the first named applicant [applicant] is the remaining relative of Naresh Kumar Sharma 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).
In this review Naresh Kumar Sharma is the applicant’s father and an Australian citizen or permanent resident and therefore is an Australian relative for these purposes.
To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at…

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 SHARMA (Migration)

Details

AGLC: SHARMA (Migration) [2019] AATA 2878
Case: [2019] AATA 2878
Decision Date: 15 March 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal of an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative). The applicant sought this visa on the basis that they were a "remaining relative" of an Australian citizen. The core of the dispute revolved around whether the applicant met the definition of a "remaining relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant and their spouse had any "near relatives" who were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens. Specifically, the Tribunal had to consider the definition of "near relative" as set out in regulation 1.15(2), which includes parents, siblings, and children (subject to age and dependency criteria) of the applicant or their spouse.

The Tribunal's reasoning focused on the strict criteria for a "remaining relative" visa. It applied the established legal principles regarding "usual residence," which require both physical presence and intention, citing cases such as *Scargill v MIMIA*. The Tribunal found that the applicant's spouse had a sibling who was a "near relative" and was not usually resident in Australia, nor an Australian citizen, permanent resident, or eligible New Zealand citizen. This finding meant that the applicant did not satisfy the requirements of regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the applicants the Subclass 835 visa, as the applicant did not meet the prescribed criteria for being a "remaining relative" at the time of application and decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicants appeared before the Tribunal, by telephone, on 15 March 2019, to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the first named applicant [applicant] is the remaining relative of Naresh Kumar Sharma 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). In this review Naresh Kumar Sharma is the applicant’s father and an Australian citizen or permanent resident and therefore is an Australian relative for these purposes. 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. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-brother or step-sister of the applicant and is ‘usually resident in Australia’. 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. As the Australian relative in this case is father of the applicant, r.1.15(1)(a) is met. 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. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met. 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. ‘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.

Decision

Reasons for decision

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 and the time of decision for the purposes of cl.835.212 and cl.835.221.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 The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.Lilly MojsinMemberATTACHMENT - 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

Full text does not contain this section.