Ignatious v MIMIA

Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(b), (c), (2), Schedule 2, cl 116.211

Ignatious v MIMIA [2004] FCA 1395

Koitaki Para Rubber Estates Ltd v FCT [1941] HCA 13; (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.

1. 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).
2. 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).
3. 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.
4. 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.
5. The review applicant was represented in relation to the review.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

1. 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).
2. 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?

1. 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.
2. 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'.
3. 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)

1. 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)

1. 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] HCA 13; (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.
2. The sponsor is an Australian citizen. However, they do not appear to be usually resident in Australia. They departed Australia on 9 December 2021 and have not returned to Australia as of this temporal reference point. They have been residing overseas in excess of 3 years and 6 months. A claim was made by them that they had departed Australia to seek assistance with medical issues which had been unsuccessfully treated in Australia. No substantial evidence has been tendered to demonstrate as fact to either the delegate, or the Tribunal, that successful treatment was unavailable in Australia.
3. The Tribunal concludes from the Departmental travel evidence available to it, and the statements made by the sponsor, they are usually resident in Hong Kong and have been so located for more than 3.5 years without returning to Australia. As stipulated in paragraph 13 of this decision_, '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'._ It is self-evident that Australia has not been that place in relation to the sponsor, Ms Pik Ping Wu. The sponsor has spent 43 months of the last 60 domiciled outside of Australia, living in China. This is in excess of 70% of her time residing in China for that relevant period. The sponsor has not returned to Australia since departing at the end of 2021.
4. The Tribunal has been furnished with a number of additional current documents as well as previously submitted documentation including Bank Account Statements, car registration, insurance documentation and ownership of property. Whilst they indicate links to Australia as a citizen, they do not in themselves indicate this is the current usual residence of the sponsor.
5. The Tribunal acknowledges a number of pieces of medical documentation which are consistent and indicate a medical condition suffered by the sponsor. It notes the next scheduled medical appointment, as well as a series of current medication prescriptions which are consistent with the claimed medical condition. None indicate a long-term substantive reason for remaining in China for treatment rather than returning to world class treatment available in Australia. Whilst the Tribunal appreciates the desire to facilitate the applicant's migration to Australia, there are no grounds for consideration of compassionate reasons available to the Tribunal in this case.
6. It is further noted that according to Departmental travel records the visa applicant has also departed Australia as of 30 August 2024. It accepts the claim she is assisting the sponsor's ex-husband who lives in Hong Kong, to care for her sister. The 3 pieces of photographic evidence submitted align with an aging individual, (the sponsor), in her latter years, in the company of her sister. It is noted by the Tribunal having viewed the original and translated documents that the sponsor and her ex-husband divorced approximately 2 decades ago. In addition, the Tribunal acknowledges the sponsor had previously sponsored her mother to come to Australia.
7. As the Australian relative is not usually resident in Australia, reg 1.15(1)(b) is not met.

1. Regulation 1.15(1)(c) requires that the visa applicant have no 'near relatives' except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.
2. 'Near relative' for these purposes is defined in reg 1.15(2) of the Regulations and means a person who is a parent, brother, sister, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or stepchild, 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.
3. As previously stated, the Tribunal accepts the visa applicant has no 'near relatives' except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. In this case a citizen of Australia but not usually resident.
4. For clarity it again notes the following. The sponsor is an Australian citizen. However, they do not appear to be usually resident in Australia. They departed Australia on 9 December 2021 and have not returned to Australia as of this temporal reference point. They have been residing overseas in excess of 3 years and 6 months. A claim was made by them that they had departed Australia to seek assistance with medical issues which had been unsuccessfully treated in Australia. No substantial evidence has been tendered to demonstrate this as fact to either the delegate, or the Tribunal. Quality medical care is available to all citizens of Australia.
5. The Tribunal concludes from the Departmental travel evidence available to it, and the statements made by the sponsor, they are usually resident in Hong Kong and have been so located for more than 3.5 years without returning to Australia. As stipulated in paragraph 13 of this decision_, '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'._ It is self-evident that Australia has not been that place in relation to the sponsor, Ms Pik Ping Wu. The sponsor has spent 43 months of the last 60 domiciled outside of Australia, living in China. This is in excess of 70% of her time residing in China.
6. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and usually resident in Australia and therefore reg 1.15(1)(c) is not met.
7. For the reasons set out above, the Tribunal is not satisfied that the visa applicant is the remaining relative of an Australian Relative at the time of decision for the purposes of cl 115.221.
8. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material provided which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.
9. There is no evidence before the Tribunal that at the time of application the visa applicant claimed to be a 'Carer' of an Australian relative, as required by cl.116.211, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123A(3)(c) of Schedule 1 to the Regulations. The visa applicant is therefore not entitled to the grant of a Subclass 116 (Carer) visa.
10. 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.

1. 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 1994

(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.

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).