Ung (Migration) - [2025] ARTA 344

Ung (Migration) [2025] ARTA 344 (26 February 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Vanna Ung
Visa Applicant:  Ms Vanny Ung
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2311914

Tribunal:Senior Member M Ison
Place:Melbourne
Date: 26 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 115 (Remaining Relative) visa:
·cl 115.211 of Schedule 2 to the Regulations.

Statement made on 26 February 2025 at 6:12pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –115(Remaining Relative visa)– applicant does not have any near relatives outside of Australia – sponsor is the sister of the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.12, 1.15, Schedule 2, cl 115.211

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 August 2023 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) Subclass 116 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The visa applicant is Ms Vanny Ung who is a 61-year-old Cambodian national who lives in Cambodia. Ms Vanny Ung is referred to as the applicant in these reasons for decision.
The applicant’s application for the Subclass 116 Carer visa is sponsored by one of her sisters in Australia, Ms Vanna Ung, who was born in Cambodia and was granted Australian citizenship on 29 June 1992. Ms Vanna Ung is the review applicant in this review and is referred to in these reasons for decision as the sponsor.
The applicant applied for the Subclass 116 Carer visa to provide care to her 87-year-old mother, Mrs Mech Khun, who was also born in Cambodia and became an Australian citizen in 1997. Mrs Khun was assessed for a Carer Visa Assessment Certificate on 31 May 2022 and the doctor who completed that assessment assigned Mrs Khun an impairment rating of 85.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The visa applicant applied for the visa on 15 February 2022. 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 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.211: that the applicant claims to be a carer of an Australian relative of the applicant.
The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of reg 1.15AA(1)(b)(i) of the Regulations. That regulation provided at the time of application:
(1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a) the applicant is a relative of the resident; and
(b) according to a certificate that meets the requirements of subregulation (2):
(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and …
The term ‘member of the family unit’ for these purposes is defined in reg 1.12 of the Regulations as follows:
Scope
(1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.
General rule
(2)     A person is a member of the family unit of another person (the family head) if the person:
          (a)     is a spouse or de facto partner of the family head; or
(b) is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:
(i)      has not turned 18; or
(ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
(c) is a dependent child of a person who meets the conditions in paragraph (b).
For the purposes of assessing the visa application, the delegate found that the resident is the sponsor, who the delegate accepted is an Australian citizen. The delegate noted that the applicant claims to be the sister of the sponsor, but the delegate did not finally determine this relationship because a birth certificate for the sponsor was not provided.
The delegate found that for the applicant to be a carer for the purposes of being granted a Subclass 116 Carer visa, subregulation 1.15AA(1)(b)(i) requires that the resident, being the sponsor, or a member of the sponsor’s family unit, must have a medical condition that causes an impairment and need for care in accordance with the requirements of Part 116 of Schedule 2 to the Regulations.
The delegate found the person with the relevant medical condition is not the sponsor, but the applicant’s mother, Mrs Khun. The delegate accepted Mrs Khun is the mother of the applicant because the applicant’s birth certificate lists Mrs Khun as her mother.
The delegate then found Mrs Khun is not a member of the family unit of the sponsor (as the resident) for migration purposes because under reg 1.12 Mrs Khun is not the spouse or de facto partner of the resident (sponsor) and Mrs Khun is not a child or dependent child of the resident (sponsor).
This meant the person with the relevant medical condition that the applicant intended to provide care for is not the resident (sponsor) or a member of the family unit of the resident (sponsor) such that the applicant does not meet the requirements of subparagraph 1.15AA(1)(b)(i) of the Regulations.
Tribunal hearing
The sponsor as the review applicant appeared before the Tribunal on 25 February 2025 to give evidence and present arguments, by video from New South Wales. The Tribunal also received oral evidence from:
·The applicant, by video from Cambodia; and
·Ms Bunly Ung, a sister of the applicant and sponsor, by video from New South Wales.
The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
Outcome of this review
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the carer of a person with a relevant medical condition or the carer of a member of their family unit with a relevant medical condition in accordance with the requirements of reg 1.15AA(1)(b)(i) of the Regulations.
The Tribunal discussed the issue in this review in detail with the applicant and sponsor – and their sister Ms Bunly Ung - during the Tribunal hearing. Their oral evidence about the care needs of their mother, the care the applicant is able to provide (and did provide when she visited Australia in 2024 as the holder of a Visitor visa) and each of their own personal circumstances was each consistent with the written information provided to the Department and the Tribunal.
For the reasons summarised in paragraphs seven to 13 of these reasons for decision the Tribunal finds that the applicant does not meet the requirements of cl. 1.15AA(1)(b)(i) of the Regulations.
Conclusion on the Subclass 116 Carer visa application
For the reasons above, the applicant does not meet the criteria for a Subclass 116 Carer visa.
Alternative grounds for the grant of a visa: Subclass 114 Aged Dependent Relative visa and Subclass 115 Remaining Relative visa
An application for a visa is an application for a class of visa rather than an application for a specific subclass of visa within a class of visa: s 45 of the Act.
As noted in paragraph six of these reasons for decision, visa Class BO contains three subclasses of visa, including Subclass 114 Aged Dependent Relative and Subclass 115 Remaining Relative.
Subclass 114 Aged Dependent Relative visa
The requirements for the grant of a Subclass 114 Aged Dependent visa are set out in Part 114 of Schedule 2 to the Regulations. At the time of application for the visa these requirements include that the applicant is an aged dependent relative of a person who is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen: cl 114.211. At the time of this decision the requirements include that the applicant must continue to satisfy the criterion in cl 114.211: cl 114.221.
The term ‘aged dependent relative’ at the time of application for the visa was defined as follows:
in relation to a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means a relative who:
(a)      does not have a spouse or de facto partner; and
(b)      has been dependent on that person for a reasonable period, and remains so dependent; and
(c)      is old enough to be granted an age pension under the Social Security Act 1991.
The term ‘dependent’ is defined in reg 1.05A as meaning:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
The applicant stated in the visa application and in the Form 80 Personal particulars for assessment including character assessment both dated 1 January 2022 and date stamped as received by the Department on 16 February 2022 that she has never been married and does not have any children. The Tribunal has no information before it to indicate this is not true and for present purposes accepts this evidence.
There is no information before the Tribunal that the applicant is or has been dependent on the sponsor or any other Australian citizen or permanent resident relative in Australia. At the time of application for the visa the applicant stated in her application that she had personal assets in the form of savings of money equivalent to AUD400,000 that she intended to bring to Australia if granted the visa. This causes the Tribunal to find that the applicant is not and has not for a reasonable period been dependent on any Australian relative.
Conclusion on Subclass 114 Aged Dependent Relative visa
The Tribunal finds that the applicant does not meet the requirements for the grant of a Subclass 114 Aged Dependent Relative visa.
Subclass 115 Remaining Relative visa
The requirements for the grant of a Subclass 115 Remaining Relative visa are set out in Part 115 of Schedule 2 to the Regulations. At the time of application these requirements include that the applicant is a remaining relative of an Australian relative for the applicant: cl 115.211. At the time of this decision the applicant must continue to satisfy the criterion in cl 115.211: cl 115.221.
The term ‘remaining relative’ and related term ‘near relative’ are both defined in reg 1.15 as follows:
(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).
Information in the Form 47OF application for migration to Australia by other family members, in the Form 80 Personal particulars for assessment including character assessment and the Form 40 Sponsorship for migration to Australia dated 10 January 2022 and date stamped as received by the Department on 16 February 2022, reveals the following information about the applicant and her family:
·The applicant is one of six children born to Mrs Khun and her deceased husband, Mr Siv Ung;
·In order of age, those children are:
oThe sponsor (aged 62);
oThe applicant (aged 61);
oMs Ravy Ung (deceased);
oMs Bunly Ung (aged 57);
oMr Bun Hoar Ung (aged 54); and
oMr Bun Hok Ung (aged 53).
The application for the visa states that each of the applicant’s living siblings lives in Australia but states they are not Australian citizens or permanent residents. This is clearly a mistake as the Department file includes a copy of Certificates of Australian Citizenship for the sponsor, Ms Bunly Ung, Mr Bun Hoar Ung and Mr Bun Hok Ung stating they were granted Australian citizenship on 29 June 1992, 2 July 2014, 25 June 1992 and 4 December 1997 respectively. The Tribunal accepts this evidence.
Each of the applicant’s siblings provided statutory declarations declared in January 2023 to the Department in which they declared their respective residential addresses to be in Australia.
The Tribunal obtained a copy of each of the applicant’s siblings’ and Mrs Khun’s Australian government movement records which record at the time of this decision they are Australian citizens, ordinarily reside in Australia and are presently in Australia.
The Tribunal finds that the applicant’s mother, two sisters (including the sponsor) and two brothers are each Australian citizens and they are each ordinarily resident in Australia.
The information before the Tribunal is that the applicant has not ever been married, does not have a de facto partner and has no children. When this information is considered in combination with the findings in paragraph 35 of these reasons, this causes the Tribunal to find that the applicant does not have any near relatives outside of Australia.
The primary decision records that the sibling relationship between the applicant and the sponsor has not been proven:
The applicant claims that she is the resident’s sister. The sibling’s relationship was declared
in the Form 47OF (Application for migration to Australia by other family member), Form 40 (Sponsorship for migration to Australia), Form 80 (Personal particulars for assessment including character assessment) and the Form 54 (Family composition).
No other documents were provided with the application to demonstrate the applicant is the sister of the resident, therefore Subregulation 1.15AA(1)(a) has not been determined.
In a submission to the Tribunal dated 9 December 2024, the sponsor submitted:
While my brother possesses his birth certificate to verify his relationship to Ms. Vanny Ung, I regret to inform you that I lost my personal documents upon arriving in Australia nearly 40 years ago. To obtain proof of my relationship, I would need to request my personal documents from the Department of Home Affairs under the Freedom of Information Act, a process that may take an extensive amount of time.
The sponsor and Ms Bunly Ung appeared together from New South Wales and the applicant by video from Cambodia during the Tribunal hearing. Apart from the obvious similarities in the physical appearance of the sponsor, the applicant and Ms Bunly Ung, it was clear to the Tribunal that the three women accepted each other as and acted towards each as, sisters. The Tribunal accepts for present purposes, without formally finding, that the sponsor is the sister of the applicant.
If the sponsor cannot obtain and provide a copy of her birth certificate to the Department as evidence of her sibship with the applicant, then the Department can invite the sponsor and the applicant to undergo deoxyribonucleic acid (DNA) testing to remove any doubt that they are biological sisters.
Based on the above, the Tribunal finds that the applicant is a remaining relative of an Australian relative for the applicant.
Conclusion on Subclass 115 Remaining Relative visa
The Tribunal finds that the applicant meets the requirements of cl 115.211 of Schedule 2 to the Regulations.
As there are other requirements in relation to sponsorship and public interest criterion to be met under Part 115 of Schedule 2 to the Regulations at the time of this decision, the Tribunal does not make any finding in relation to the applicant meeting cl 115.221 of Schedule 2 to the Regulations.
Conclusion
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 Remaining Relative visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 115 (Remaining Relative) visa:
·cl 115.211 of Schedule 2 to the Regulations.
Date of hearing: 25 February 2025
Representative for the Applicant: Nil