1409748 (Migration)

[2015] AATA 3378

1409748 (Migration) [2015] AATA 3378 (3 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Laura Natalie Palmer

CASE NUMBER:  1409748

DIBP REFERENCE(S):  CLF2013/267138

MEMBER:Michelle Grau

DATE:3 September 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 03 September 2015 at 4:30pm

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 13 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 28 October 2013. 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).

3. The delegate refused to grant the visa on the basis that cl.835.212 and 835.221 was not met because the applicant was not a remaining relative as she had near relatives, being a step brother and father who were not usually resident in Australia or permanent residents or Australian citizens.

4. The applicant appeared before the Tribunal on 3 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from applicant’s mother and step father.

5. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

6. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the remaining relative of her step father, Gary Scott, who the applicant claims is her 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).

8. In this case Gary Scott is the applicant’s step-father and became an Australian permanent  on 28 April 2010 as the holder of a VE 176 visa and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

9. 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.

10. 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’.

11. 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)

12. The Australian relative claims to be the step parent of the applicant. Based on the applicant’s birth certificate the tribunal accepts she was born in 1989 to an unknown father and her mother Nichola Palmer. The tribunal accepts the Australian relative, Gary Scott, married the applicant’s mother, Nichola in October 1998 as evidenced by the marriage certificate. The tribunal accepts according to the applicant’s statement Mr Scott has been the visa applicant’s step parent since she was six years old. As the Australian relative in this case is the step parent of the applicant, r.1.15(1)(a) is met.

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

13. 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.

14. Based on the movement records and documents provided the tribunal accepts the Australian relative is usually resident in Australia.

15. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

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

16. 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.

17. ‘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.

18. The applicant’s step father, mother, Nichola Scott and two half-brothers were granted permanent residence in 2010 and are Australian permanent residents and their movement records indicate they are usually resident in Australia.

19. The applicant also has a biological father and step-brother, James Collins. The step brother is the son of the applicant’s step-father from a relationship prior to his marriage to Nichola Scott.

20. At hearing the tribunal discussed its concerns that the applicant appeared to have two near relatives, a biological father and a stepbrother in the UK.

21. The applicant claimed she did not know who her father was or where he was and thought he was dead. She has never lived with him or known him. Her mother was in a relationship with him but she left him because he treated her badly. They have had no contact since. The applicant is on social media and identifies her mother but the father has never looked for her and she is not interested in him either. She does not know his name.  She considers her only family are her step-father and two half-brothers and they are all very close. There was never any need for her step-father to adopt her as she has always been with him and her mother.

22. The applicant confirmed she was initially part of the family’s Australian permanent residence visa application but decided to remain in the UK as she was in a relationship. However, that ended badly and she later joined her family in Australia.

23. The applicant has found work in Australia as a waitress and has been in Australia nearly three years. She has been in an ‘on and off’ relationship with an Australian and they are ‘back on’ these last 3 or 4 months. Prior to that he returned to Mt Isa as his mother was ill, but they still kept in contact. She considered it was a defacto relationship.

24. The applicant claimed she had no knowledge of the step brother, James and had never heard of him and did not regard him as their family.

25. Mrs Scott confirmed she was in a short relationship with the applicant’s father and she left him soon after the applicant was born. Neither she nor the applicant has had any contact with the biological father. In the past Mrs Scott has seen the biological father in the street a couple of times in the UK, but she avoided him. The applicant lived with Mrs Scott was a single mother, working two jobs, until she met and partnered with Mr Scott. The biological father has never been a father or parent to the applicant. She heard a rumour he was deceased but has not done anything about it and has no interest in him. Their family includes the four of them, herself, the stepfather, two half-brothers, and the applicant. The law should not separate their family and the prospect of separation is already affecting the children.

26. Mrs Scott said they are honest people and it was an honest mistake not mentioning the stepson as a relative but they have no contact and did not think of him as a being family. Recently there has been some doubt he is the biological father as Mr Scott’s name is not on the birth certificate of the stepson. She thinks he is about 18- 21 years old.

27. Mr Scott confirmed he had a prior relationship and James Collins was born of that relationship, though he is not named on the James’ birth certificate. He saw James for a few weeks after the birth, but the relationship ended badly and he has had no contact since. James is 21 years old and as far as he knows is living in the UK.[1]

    [1] S359AA evidence of witnesses put to applicant

28. In response to s359AA evidence of the witnesses the applicant said as far as she knows and considers her family have always been her mother, stepfather and two half-brothers and no one else.

29. The tribunal notes the applicant’s and witnesses’ concerns about separation of the family and their lack of contact with the father and step father but it has no discretion and is required to consider her near relative as defined by the Migration legislation.

30. The agent’s written submissions were as the applicant’s father was not on her birth certificate and is unknown it is unreasonable to include him as a near relative or require proof of his death or that the applicant had been adopted. The tribunal does not accept the agent submissions as the legislation clearly defines those who are considered near relatives. Further the tribunal does not accept the father is unknown as Mrs Scott was in a relationship with him at the time.

31. The term ‘parent’ is defined in s.5(1) of the Act, which states that “without limiting who is parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in s.5CA.” The definition of ‘child’ in s.5CA links to the Family Law Act 1975, and a child-parent relationship under that Act generally refers to the relationship between a child and his or her biological parents, such that a ‘child of a person’ under the Migration Act1958 would include a biological child of a person.  

32. The fact that the biological father was not named on the visa applicant’s birth certificate does not obviate the fact that she is the child of another parent, who is her biological father, even if she does not know his name or whereabouts.

33. While it was suggested the father may be deceased, no documentary evidence was provided in that regard. The tribunal does not accept the father is deceased. The tribunal does not accept the common law presumption of death applies as the applicant and her mother would not have received communication from him as they were not in contact in the normal course, since the applicant’s parents ended the relationship when the applicant was a baby.  Further, no attempts have been made to search the deaths register in the UK to confirm whether the father was deceased.

34. There is no evidence that the father or step-brother are Australian citizens or permanent residents or eligible New Zealand citizens or usually resident in Australia

35. The tribunal finds the applicant has a biological father who is not deceased and lives in the UK.  Further, on the evidence before it the tribunal finds the applicant has a step-brother, James Collins, who is 21 living in the UK.  As a result the tribunal finds the applicant has two near relatives who are not usually resident in Australia and are not Australian citizens or permanent residents or eligible New Zealand citizens.

36. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

    CONCLUSIONS

37. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.

38. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

39. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Michelle Grau
    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).