1409384 (Migration)

[2016] AATA 3500

1409384 (Migration) [2016] AATA 3500 (16 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Siegfried Weigang

CASE NUMBER:  1409384

DIBP REFERENCE(S):  CLF2010/175414

MEMBER:Hugh Sanderson

DATE:16 March 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl.835.211 of Schedule 2 to the Regulations; and

·cl.835.221 of Schedule 2 to the Regulations.

Statement made on 16 March 2016 at 4:24pm

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 on 5 May 2014 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 December 2010. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212 and cl.835.221.

3. The delegate refused to grant the visa on the basis that cl.835.212 and cl.835.221 was not met because the delegate was not satisfied that the applicant met the definition of a remaining relative in reg.1.15.

   Background

4. The applicant was born in 1943 in Grassau in what was then Germany and is now Poland. He claimed that his mother was Emmi (also known as Emmy) Presser, who was the sponsor of the application, and he did not know who his father was. Ms Presser later married Kurt Presser and they had two children, Michael born in 1957 and Linda born in 1965. Mr Presser is now deceased and both Michael and Linda reside in Australia and are Australian citizens.

5. When considering the application, the following issues were noted by the department:

   ·The applicant had not provided a copy of his birth certificate which would ordinarily be obtainable from the German authorities; and

   ·No further official documentation had been provided to confirm the make-up of his family.

6. Based on these considerations, the delegate was not satisfied that the applicant was the son of the sponsor or met the definition of a remaining relative in reg.1.15.

7. The applicant provided further material to the tribunal in support of his application. This included the following:

   ·Statement outlining his family history;

   ·Birth certificate issued by the Polish authorities on 8 October, 2014 confirming the identity of his mother, and noting his father is unknown; and

   ·Details from the National Archives of Australia of the arrival of his family in Australia;

   ·Birth certificate of Linda Presser, his half-sister; and

   ·Death Certificate of Kurt Presser, his step-father.

8. The applicant was invited to have DNA testing to establish his relationship with the sponsor. He consented to the tests being conducted. The results of the testing concluded the sponsor was the mother of the applicant.

9. The tribunal has proceeded to a decision without the need for a heaing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa application was made on the basis that the applicant is the remaining relative of Emmy Presser, who the 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: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

12. In this case the sponsor is the applicant’s mother and an Australian citizen and therefore is an Australian relative for these purposes.

    Is the applicant a remaining relative of an Australian relative?

13. To be granted a Subclass 835 visa the 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.835.212 and cl.835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

14. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

15. The 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 applicant is an adopted child.

    The requirement to be a parent or sibling: r.1.15(1)(a)

16. The applicant has provided DNA evidence to the tribunal confirming the sponsor is his mother. He has provided a copy of his birth certificate. As the Australian relative in this case is the mother of the applicant, r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

17. 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.

18. The sponsor is a citizen of Australia and since 1951 has lived in Australia. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

    No near relatives: r.1.15(1)(c)

19. Regulation 1.15(1)(c) requires that the applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

20. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, 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.

21. The applicant has two half-siblings, Michael and Linda. Both are Australian citizens and reside in Australia. The father of Michael was married to the applicant’s mother and was, accordingly the applicant’s step-father. He died in 1959. Linda’s father was not married to the applicant’s mother and therefore he is not considered his step-father.

22. The applicant’s biological father is unknown. The birth certificate issued by the Polish authorities does not state a father for the applicant. The applicant was born on 21 January, 1943 during World War II. His mother at the time of his birth was 17 years old. In the circumstances, it is understandable that the applicant does not know who his biological father is or any details about him.

23. Based on the circumstances of the birth of the applicant, the fact that the applicant and the sponsor have no knowledge or information about his father and that the father would have been of military age at the time of the applicant’s birth the tribunal finds that the applicant’s father died at some time before 1945.

24. There is no information before the tribunal that the applicant has any other relevant relatives.

25. For these reasons, the tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is met.

    Adopted child: r.1.15(1)(d)

26. If the applicant is a child who has not turned 18 and has been adopted by an Australian citizen, permanent resident or an eligible New Zealand Citizen, while overseas, r.1.15(1)(d) requires that at the time of application the adoptive parent has been residing overseas for at least 12 months. This requirement does not apply in this case.

    Conclusion on cl.835.212/835.221:

27. For the reasons set out above, the tribunal is satisfied that the applicant is the 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.

    DECISION

28. The tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cl.835.212 of Schedule 2 to the Regulations; and

    ·cl.835.222 of Schedule 2 to the Regulations.

    Hugh Sanderson
    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).