Siddiqui (Migration)

[2017] AATA 2828

Siddiqui (Migration) [2017] AATA 2828 (19 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aqueel Siddiqui

CASE NUMBER:  1718552

DIBP REFERENCE(S):  CLF2016/84798

MEMBER:Antoinette Younes

DATE:19 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2017 at 12:34pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Applicant’s mother and brother’s residency status – Applicant does have near relative

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 835.212, 835.221

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 Immigration on 9 August 2017 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 November 2016. 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 (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 of not meeting cl.835.212 which requires the applicant to be a remaining relative of an Australian relative.

4. The applicant appeared before the Tribunal on 18 December 2017 to give evidence and present arguments.

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 applicant is the remaining relative of his sponsoring sister, Ms Ambreen Raza SIDDIQUA, 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).

   Is the applicant a remaining relative of an Australian relative?

7. 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.

8. 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’.

9. 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: r.1.15(1)(a)

10. In this case is, Ms Ambreen Raza SIDDIQUA is the applicant’s sister and she is an Australian citizen and therefore, r.1.15(1)(a) is met.

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

11. 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.

12. On the evidence, the Tribunal is satisfied that the Australian relative is usually resident in Australia, and therefore r.1.15(1)(b) is met.

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

13. 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.

14. ‘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.

15. In the visa application, the applicant indicated that the following individuals are his family members:

    a.Mr Ahmed R Siddiqui – deceased father

    b.Ms Zeenath Sajeeda – mother currently residing in Australia

    c.Mr Shakeel Saddiqui – sibling currently residing in Australia

    d.Ms Fatima Khan – deceased sibling

    e.Ms Nazeema Siddiqa – sibling currently residing in Australia

    f.Mr Mohammed Fawaz Raza - sibling currently residing in Australia

    g.Mr Ambreen Raza Siddiqua - sibling currently residing in Australia

    h.Mr Nabil Siddiqui - sibling currently residing in Australia.

16. The delegate’s decision record provided by the applicant in support of the application for review indicates that Departmental systems were checked to verify the residence status of the applicant’s family and it was revealed that:

    a.Ms Zeenath Sajeeda, the applicant’s mother has been residing in Australia on a Bridging Visa A as a temporary resident as she currently has an Aged parent Visa subclass 804 application which was lodged on 3 June 2016 and accordingly, she is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen. She is a citizen of India and a permanent resident of India.

    b.Mr Ambreen Raza Siddiqua has been an Australian citizen since 8 October 2012 and she is a settled resident of Australia.

    c.Ms Nazeema Siddiqa has been an Australian permanent resident since 2 December 2015 and she is a settled resident of Australia.

    d.Mr Shakeel Saddiqui has been an Australian citizen since 27 September 2016 and he is a settled resident in Australia.

    e.Mr Mohammed Fawaz Raza has been an Australian permanent resident since 13 July 2011 and he is a settled resident of Australia

    f.Mr Nabil Siddiqui is currently residing in Australia on a Bridging Visa C as a temporary resident. He currently has a combined Partner Visa application subclass 820/801 which was lodged on 19 February 2016 and therefore he is not an Australian citizen, or Australian permanent resident, or eligible New Zealand citizen. He is a citizen of India and a permanent resident of India.

17. On 30 May 2017, the Department sent a letter to the applicant inviting his comments on the information that his mother and brother, Mr Nabil Siddiqui, were not Australian citizens, Australian permanent residents or eligible New Zealand citizens and consequently the applicant would appear not to satisfy the criteria. The applicant responded on 7 August 2017 confirming the details provided in the application.

18. In the course of the hearing, the Tribunal discussed with the applicant the information that as his mother and brother, Mr Nabil Siddiqui, were not Australian citizens, Australian permanent residents or eligible New Zealand citizens, it appears that he does not meet the criteria for the subclass 835 visa. The applicant did not dispute the accuracy of the information but asked if it would be possible for the Tribunal not to make a decision until the determination of the applications made by his family members, namely the combined Partner Visa application subclass 820/801 lodged by his brother, and the Aged parent Visa subclass 804 application lodged by his mother. The Tribunal asked the applicant if he knew about the processing time for the subclass 804 and he stated that he understood it to be between 20 to 30 years. The Tribunal confirmed its own understanding in relation to the processing time being around 30 years (Departmental website indicates that there can a waiting time of up to 30 years for this visa[1]). The Tribunal explained to the applicant that the combined Partner Visa application subclass 820/801 lodged by his brother could also take some time. The Tribunal explained that even if granted, the subclass 820 is a temporary visa and if his brother were to continue to meet the criteria of the visa approximately two years later, he could be granted the permanent subclass 801. The applicant understood. The Tribunal explained to the applicant that in those circumstances and given the length of time anticipated, the Tribunal does not consider it reasonable to await the finalisation of the Partner Visa application subclass 820/801 and/or the subclass 804.

    [1] >

    The Tribunal has carefully considered the request to hold off finalising this matter but in circumstances where it could take up to 30 years to finalise a decision, the Tribunal is satisfied that it is not reasonable to await the finalisation of the visa applications by the two members of the applicant’s family. The Tribunal is satisfied that it is not in the interest of justice for matters to be awaiting finalisation for years and this is also contrary to the Tribunal’s charter and objectives. The Tribunal is of the view that not finalising a case for the reasons stated is not consistent with s.2A of the Administrative Appeals Tribunal Act 1975, which provides that:

    Tribunal’s objective

    In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

    (a)  is accessible; and

    (b)  is fair, just, economical, informal and quick; and

    (c)  is proportionate to the importance and complexity of the matter; and

    (d)  promotes public trust and confidence in the decision‑making of the Tribunal.

19. Specifically, the Tribunal is of the view that holding off finalising this review is not economical, quick, or promotes public trust and confidence in the decision-making of the Tribunal; the Tribunal is of the view that it is reasonable to suggest that the public would be concerned about matters not being finalised for many years. Moreover, the Tribunal does not consider it unfair or unjust to finalise this matter in the current circumstances. The applicant lodged an application where he does not meet the criteria.

20. In consideration of the evidence as a whole, the Tribunal finds that the applicant does have a near relative in accordance with the definition in reg.1.15(2). For these reasons, the applicant does not meet re.1.15(1)(c) and therefore does not meet cl.835.212.

21. 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.

22. Given the findings above, the appropriate course is to affirm decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    DECISION

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

    Antoinette Younes

    
    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).