Sun (Migration)

[2017] AATA 2629

Sun (Migration) [2017] AATA 2629 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jing Di Sun

VISA APPLICANT:  Mr Jingzhi Sun

CASE NUMBER:  1706829

DIBP REFERENCE(S):  2010088354

MEMBER:Justine Clarke

DATE:6 December 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 115 (Remaining Relative) visa:

·cl.115.221 of Schedule 2 to the Regulations

Statement made on 06 December 2017 at 4:00pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – Household Register – Parties movement records – Family are permanent residents of Australia

LEGISLATION
Migration Act 1958, ss 65, 360(2)
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 115.221

CASES
Ignatious v MIMA 1617197 [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargrill 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 to refuse to grant the applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. On 10 August 2010, the visa applicant, Mr Jingzhi Sun, applied for the visa. 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).

3. In the present case, the visa applicant is 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.115.221.

4. On 29 March 2017, the delegate refused to grant the visa on the basis that cl.115.221 was not met because evidence that Mr Sun continued to be the remaining relative of his Australian relative Mrs Jing Di Sun (the sponsor and the review applicant) had not been provided to the Department. This was despite a specific request being sent on 5 January 2016 outlining the three documents or pieces of information required to satisfy a criterion for the grant of the visa under the Regulations and a follow up reminder email being sent on 15 February 2016 providing Mr Sun with a further 14 days to submit the requested documents/information. The delegate noted that, at the time of the decision, the information had not been received.

5. On 2 April 2017, Mrs Sun, applied to the Tribunal for review of the primary decision. When applying for review, Mrs Sun included a statement where she claimed that the visa applicant ‘had not noticed or totally missed the notification of the addition[al] information/document request[ed] from the department. He’d like to provide these information/documents now’.  

6. On 19 June 2017, the Tribunal received the following evidence in support of Mr Sun’s visa application and this review:

   ·     a completed Form 1022—Notification of changes in circumstances, dated 5 June 2017, stating that there were ‘no changes’;

   ·     a notarial certificate, including an English translation, dated 24 May 2017, identifying the visa applicant and stating that he ‘had no criminal record during his residence in the People’s Republic of China up to April 24, 2017’;

   ·     Mr Sun’s statement and an accompanying notarial certificate, including English translations, dated 24 May 2017, stating respectively that Mr Sun had ‘never registered for marriage nor cohabited in de facto marriage with anyone to date’, that he confirmed that this statement was true and genuine and that if there was any falsehood in this respect that he would bear all the legal responsibilities arising from that and Mr Sun was aware of the legal meaning and consequence of his statement; and

   ·     a copy of the pages of a ‘Household Register’ issued on 14 November 2003 and an accompanying notarial certificate dated 24 May 2017, including English translations.

7. On 28 November 2017, the Tribunal wrote to Mrs Sun and requested that she provide a copy of the visa applicant’s current Household Register. The Tribunal noted that a copy of the Household Register that was issued on 14 November 2003 had been provided to the Tribunal previously. The letter stated that if the information is in a language other than English that it must be accompanied by an English translation from an accredited translator. The Tribunal requested that the information be submitted by 12 December 2017.

8. On 6 December 2017, Mrs Sun submitted a copy of the pages of a ‘Household Register’ issued on 29 November 2017 and an accompanying notarial certificate dated 30 November 2017, including English translations.

9. Upon reviewing the information and evidence on its file (including movement records for the visa applicant’s sister and their parents) and the Department’s file, the Tribunal decided, pursuant to s.360(2)(a) of the Act, that it should decide the review in the applicants’ favour on the basis of the material before it and that a hearing was not required.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether, at the time of this decision, the visa applicant meets the requirements of cl.115.221. Essentially, this requires the visa applicant to continue to be a ‘remaining relative’ at the time of decision.

12. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision. (‘Relative’ is defined in r.1.03 of the Regulations).

13. 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 (namely, those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens): s.1.15(1)(c). ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations.

    Is the visa applicant a remaining relative of an Australian relative?

14. The visa application was made on the basis that the visa applicant is the remaining relative of Mrs Sun.

15. The Tribunal has reviewed and considered the evidence on the files.

16. The evidence before the Tribunal is that, at the time of this decision, Mr Sun remains unmarried and is not in a de facto relationship and that he has no children. The Tribunal accepts the accuracy of the evidence before it.

17. On the basis of the evidence before it, the Tribunal finds that, at the time of this decision, Mr Sun’s only near relatives are his sister (the review applicant) and their parents (Mr SUN Bohui and Ms YU Jiongjing).

18. On the basis of the evidence—specifically, Mrs Sun’s certificate of Australian citizenship and her movement records—the Tribunal is satisfied that Mrs Sun is an Australian citizen who is usually resident in Australia.

19. The most recent Household Register that was submitted states that Mr B Sun is the head of the household of a specified address in Shanghai, China and that Ms J Yu is his wife and the visa applicant his son. Notwithstanding this evidence which suggests that Mr B Sun and Ms J Yu usually reside in Shanghai, China, the Tribunal is satisfied that both Mr B Sun and Ms J Yu are permanent residents of Australia and that they are usually resident in Australia. The Tribunal makes this finding on the basis of the evidence.

20. First, the movement records for Mr B Sun and Ms J Yu evidence them as both having, at the time of this decision, permanent visas, namely Return (Residence) (Class BB), Subclass 155 visas. In these circumstances, the Tribunal finds that they are both permanent residents of Australia. 

21. Second, the Tribunal is mindful of the case law for determining whether the Australian relative is usually resident in Australia for the purpose of 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.

22. The movement records for Mr B Sun and Ms J Yu also evidence their arrivals in and departures from Australia. According to these records, both parties are currently offshore and have been since early September 2017. In these circumstances, it is unsurprising that the Household Register that was issued on 29 November 2017 states that they are resident at the specified address in Shanghai. They may well be staying there while offshore.

23. On the basis of the evidence—in the parties’ movement records—of the periods of time in which they have been lawfully present in Australia, the Tribunal is satisfied that they usually reside, physically, in Australia.

24. Further, the Tribunal considers that Mr B Sun and Ms J Yu’s action in applying for, and being granted, Return (Residence) (Class BB), Subclass 155 visas strongly suggests that it is their intention to usually reside in Australia. This is because the purpose of that particular visa, as outlined in the Department’s guidelines (PAM3), is to facilitate the re-entry into Australia of non-citizen permanent residents (amongst others) and to ensure that only those people who have a genuine commitment to residing in Australia, or who are contributing to Australia’s well-being, retain the eligibility to return to Australia as permanent residents.

25. For these reasons, the Tribunal is satisfied that there are no near relatives other than those permitted by the Regulations.

26. For the reasons set out above, the Tribunal is satisfied that the visa applicant is the remaining relative of an Australian relative at the time of this decision for the purpose of cl.115.221.

27. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 115 visa.

    DECISION

28. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 115 (Remaining Relative) visa:

    ·cl.115.221 of Schedule 2 to the Regulations

    Justine Clarke
    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).