Dizon v Minister for Immigration and Citizenship [2025] FedCFamC2G 1890

1. This is an Application for judicial review of a decision of the then Administrative Appeals Tribunal ("the Tribunal") dated 24 June 2019, affirming a decision of a delegate of the first respondent ("the delegate") not to grant the applicants a Other Family (Residence) (class BU) Remaining Relative (subclass 835) visa ("the visa") under s 65 of the Migration Act 1958 (Cth) ("the Act").
2. For the reasons set out below, the Application must be dismissed.

1. The first applicant ("the applicant") is a citizen of the Philippines. The second applicant is her child.
2. On 6 June 2017, the applicant lodged an application for the visa.
3. On 17 April 2018, the delegate refused to grant the visa on the basis that they were not satisfied that the applicant met the criteria set out under cl 835.321 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
4. On 30 April 2018, the applicant lodged an application for review of the delegate's decision with the Tribunal.
5. On 29 May 2020, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments.
6. On 24 June 2020, the applicant and her representative appeared before the Tribunal.
7. On 24 June 2020, the Tribunal affirmed the decision under review not to grant the applicants the visa.

1. The Tribunal identified that the issue for review was whether the applicant was a remaining relative of an Australian relative and satisfied the requirements as set out in cl 835.212 of Schedule 2 to the Regulations.
2. The Tribunal considered, for the purposes of the applicant's application, the definition of 'remaining relative' and 'Australian relative' under r 1.15 and r 1.03 of the Regulations respectively [5].
3. The Tribunal was provided a copy of the primary decision, which indicated that the applicant was sponsored by her brother. The applicant's brother's Australian residence was also provided with the application.
4. The Tribunal noted that the applicant stated in her application that her mother and another brother were U.S. residents, which was confirmed by the Department records.
5. The Tribunal noted that the applicant, in her oral evidence, submitted that she was the only one left in the Philippines. However, upon understanding the requirements of her visa application, the applicant confirmed that her brother and mother lived in the United States.
6. The Tribunal found the applicant's mother and brother to be the applicant's 'near relatives' [11]. As they do not reside in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens, the applicant did not meet r 1.15(1)(c) of the Regulations.
7. The Tribunal was not satisfied that the applicant was a remaining relative of an Australian relative at the time of application and at the time of decision for the purposes of cl 835.212 and cl 835.221 of the Regulations. Consequently, the secondary applicant did not meet cl 835.321 of the Regulations [12].
8. The Tribunal noted that the applicant was not eligible to be granted an aged pension. Therefore, the applicant did not meet the requirements to be granted the Aged Dependent Relative visa. The Tribunal noted that the application was not accompanied by evidence that the applicant sought the relevant Carer certificate or that the applicant claimed to be a carer. As such, the Tribunal found that the applicant did not make a valid application for a Carer visa. Notwithstanding the validity of the Carer visa application, the Tribunal noted that the applicant would not meet the requirements for a Carer visa [13].
9. The Tribunal observed that the second applicant did not make any claims to meet the primary criteria, and there was no evidence before it to indicate that he would meet the primary criteria for the grant of the visa [14].
10. Accordingly, the Tribunal affirmed the decision not to grant the applicants the visa.

1. The applicants advance one ground of judicial review contained in an Originating Application filed with the Court on 24 July 2020. The applicant's sole ground of judicial review is as follows:
   1. The decision of the Administrative Appeals Tribunal ('the Tribunal') was affected by jurisdictional error when it applied a strict application of the law under Regulation 1.15, subregulation 1.15(1)(c) of the Migration Act which seriously prejudiced the applicants to stay in Australia.

Particulars

1. The Tribunal failed to properly consider that the applicants are the only remaining relative of the Sponsor living in the Philippines.
2. The definition of Remaining Relative at regulation 1.15, subregulation l.15(1)(c) requires that an applicant and their spouse or partner (if any) have no near relatives, other than near relatives who are usually resident in Australia and who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.
3. A near relative, as defined in subregulation 1.15(2) (a) includes a parent, brother, sister, stepbrother or step-sister of the applicant or of the applicant's spouse or de facto partner (if any).
4. The Tribunal has concluded that the decision under review should be affirmed. The position for the appeal is to advance the interest of the applicants in so far as arguing and providing evidence that the applicants are the last remaining relatives of the sponsor in the Philippines.
5. This application seeks to contest the notion that the applicants are capable of satisfying the Regulations.

1. The applicant appeared before the Court unrepresented. She was not assisted by an interpreter. The Court assessed the applicant's English language skills as more than sufficient for her to fully participate in the hearing.
2. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent's written submissions had been provided to her. The Court also ensured that the applicant had access to a pen and paper so she could take notes during the course of the hearing, should she wish to.
3. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be conducted.
4. At the hearing, the applicant provided the Court, a bundle of documents and an outline of her submissions. The documents addressed matters that postdated the Tribunal hearing and were not admitted into evidence. Some aspects of the written submissions were rejected for the same reason.
5. The applicant informed the Court that she had applied for the visa based on the advice she received from her Migration Agent. The applicant trusted the Agent to handle her application, as she lacked the skills to navigate Australia's complex migration laws.
6. The Court discussed with the applicant that it was an essential requirement for the type of visa she applied for that she did not have any 'near relatives' living outside Australia. In her case, her mother and one of her brothers live in the United States. In this circumstance, both the delegate and the Tribunal made the only decision that was open to them.
7. Further, it would be futile to send the matter back to the Tribunal, as the Tribunal would be obliged to make the same decision to refuse her the visa she sought.
8. The Court discussed options for Ministerial Intervention with the applicant, noting that she is now in a relationship with an Australian citizen, and suggested a partner visa. However, the Court urged the applicant to seek advice from a lawyer or a Migration Agent.
9. At the conclusion of the respondent's oral submissions, the applicant was asked if she wished to state anything in reply. The applicant answered "No".

1. The applicants' sole ground of judicial review alleges that the Tribunal applied a strict application of reg 1.15 of the Regulations, and in doing so, prejudiced the applicants.
2. Regulation 1.15 of the Regulations provides that 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:

(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...

1. In order for the applicant to be granted the visa, she had to meet the requirements in clause 835.21 of Schedule 2 of the Regulations, which necessitated that the applicant be a remaining relative of an Australian relative.
2. At the time of application, the applicant's mother and brother were residing in the United States, and they were neither Australian citizens, New Zealand citizens, nor Australian permanent residents. Therefore, having regard to reg 1.15(1)(c), the applicant had near relatives who were not residents in Australia and were neither Australian citizens, New Zealand citizens nor Australian permanent residents.
3. Accordingly, the Tribunal correctly applied the relevant legislative criteria, having regard to the definition in reg 1.15(1)(c) and the requirements in cl 835.21 of Schedule 2 of the Regulations to conclude that the applicant could not satisfy the relevant visa criteria. Consequently, the second applicant could not meet the secondary criteria under cl 835.3 of Schedule 2 of the Regulations. The Tribunal came to the only decision open to it based on the applicant's own evidence.
4. Even if the Court were to find that the Tribunal decision is affected by jurisdictional error, which is not conceded, the Court should refuse relief in the exercise of its discretion on the basis that remittal to the Tribunal would be futile: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181 at [47]. The applicants cannot change the objective fact that at the time of the application, the applicant's mother and brother resided in the U.S.

1. The applicants' sole ground of judicial review has no merit. For the reasons outlined above by the respondent, the applicant could not meet the requirements of clause 835.21 due to having near relatives, specifically her brother and mother, living outside Australia at the time of the application.
2. In this circumstance, the Tribunal had no option other than to affirm the delegate's decision not to grant the applicants the visa sought.
3. Even if an error were present in the Tribunal's decision, which is not apparent, it would be futile to remit the matter back to the Tribunal, as it would be obliged to make the same decision.
4. The Court notes, however, that the applicant has been in Australia for a considerable period. The applicant contributes to Australia by working as a carer in the disability sector. The applicant is making a valuable contribution to Australia by working in an area where it is difficult to get trained employees. This may be a matter that might receive favourable Ministerial intervention, but that is not a decision for the Court to make.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.