Wu (Migration) - [2025] ARTA 1615

Wu (Migration) [2025] ARTA 1615 (2 July 2025)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Pik Ping Wu
VISA APPLICANT:  Ms Bilian Hu
REPRESENTATIVE:  Ms Yuting Chen (MARN: 1806695)
CASE NUMBER:  2311392
HOME AFFAIRS REFERENCE(S):          OSF2011021860
MEMBER:Peter Emmerton
DATE:2 July 2025
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 02 July 2025 at 11:04am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – sister – sponsor ‘usually resident in Australia’ – sponsor departed Australia and living in country of origin – medical condition and treatment – visa applicant also departed Australia – no evidence of eligibility for other subclasses – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(b), (c), (2), Schedule 2, cl 116.211
CASES
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v FCT (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
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 Home Affairs on 24 May 2023 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 13 May 2021. 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 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 1.15(1)(c).
The delegate refused to grant the visa on the basis that cl 1.15(1)(c) was not met because they formed the view that the sponsor was not usually resident in Australia.
The review applicant requested the review be undertaken on the papers. The Tribunal is confident that sufficient relevant evidence had been submitted to enable it to undertake a fair assessment without a hearing as requested.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the visa applicant is the remaining relative of Ms…

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 Wu (Migration)

Details

AGLC: Wu (Migration) [2025] ARTA 1615
Case: [2025] ARTA 1615
Decision Date: 2 July 2025

CaseChat Overview and Summary

In the matter of Wu, the Tribunal considered the application for a Subclass 115 (Remaining Relative) visa made by the visa applicant, who claimed to be the sister of an Australian citizen, Ms Pik Ping Wu. The central issue was whether the visa applicant could be classified as a remaining relative under the relevant regulations, given the circumstances of both parties. The applicant had departed Australia and was living in their country of origin, and Ms Wu had also left Australia and was residing in their home country.

The legal issues revolved around the interpretation of the term "usually resident in Australia" under regulation 1.15 of the Migration Regulations 1994. This term requires both physical presence and an intention to reside in Australia. The Tribunal had to determine if the applicant met the criteria for being a remaining relative despite the absence of both parties from Australia. Furthermore, the Tribunal considered the lack of evidence supporting the applicant’s eligibility for other visa subclasses.

The Tribunal concluded that the decision to deny the visa should be affirmed. The Tribunal found that the applicant did not meet the criteria of being a remaining relative because the sponsor, Ms Wu, was not "usually resident in Australia". The evidence showed that both parties had departed Australia, and there was no indication that Ms Wu had the requisite intention to reside in Australia. Additionally, the Tribunal noted that the applicant did not provide sufficient evidence to qualify for other visa subclasses. Therefore, the Tribunal upheld the original decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the visa applicant is the remaining relative of Ms Pik Ping Wu, who the visa 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). In this case Ms Pik Ping Wu is the visa applicant’s sister and is an Australian Citizen and therefore is an Australian relative for these purposes Is the visa applicant a remaining relative of an Australian relative? To be granted a Subclass 115 visa the visa 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 115.211 and cl 115.221. ‘Remaining relative’ is defined in reg 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, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the visa applicant and is ‘usually resident in Australia’. 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. Additional provisions apply if the visa applicant is an adopted child.The requirement to be a parent or sibling: reg 1.15(1)(a) The Department and the delegate accepted the visa applicant is the sister of the sponsor. The Tribunal likewise accepts this as fact. It has viewed the evidence provided including the Passports of the applicant and sponsor as well as the Departmental records. The Australian relative in this case is the sister of the applicant, therefore, reg 1.15(1)(a) is met.Whether the Australian relative is usually resident in Australia: reg 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 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.

Decision

Reasons for decision

The evidence before the Tribunal indicates that the visa applicant was born on [Date]. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the visa applicant meets the definition of the term ‘aged dependent relative’ in r.1.03 for cl.114.211 of Schedule 2 to the Regulations.DECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.Representative for the Applicant: Ms Yuting Chen (MARN: 1806695)ATTACHMENT - 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

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