1419244 (Migration) - [2015] AATA 3391

1419244 (Migration) [2015] AATA 3391 (18 August 2015)
DECISION RECORD
APPLICANT:  Mr Shahyad Saffari
CASE NUMBER:  1419244
DIBP REFERENCE(S):  bcc2014/2596192
TRIBUNAL MEMBER:  Belinda Mericourt
DATE:18 August 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Statement made on 18 August 2015 at 1:39pm

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 Immigration on 5 November 2014 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 1 October 2014. 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.835.211.
The delegate refused to grant the visa on the basis that cl.835.211 was not met because the applicant has near relatives who are not Australian citizens or Australian permanent residents who reside outside Australia.
On 25 November 2014, the applicant lodged an application for review of the Department’s decision.
The applicant appeared before the Tribunal on 12 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor (his father).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant was born in November 1992 in the USA and is a citizen of the USA. His mother died on 30 July 2010 (death certificate sighted by the Tribunal). His father remarried and he and his spouse and the applicant’s half-sister reside in Australia. The applicant has a half-brother born in November 2001 residing in the USA. The applicant has never been married or in a de facto relationship. He was granted a Work and Holiday visa (Temporary) (subclass 462) and arrived in Australia on 17 August 2014. This visa ceased on 17 August 2015.
The applicant’s sponsor is his father. He was born in Iran and has been an Australian permanent resident since 9 July 2009. He has never departed Australia since that date. The applicant has been residing with his father since his arrival in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the remaining relative of his father who is an Australian permanent resident.
Is the applicant a remaining relative of an Australian relative?
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’…

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 1419244 (Migration)

Details

AGLC: 1419244 (Migration) [2015] AATA 3391
Case: [2015] AATA 3391
Decision Date: 18 August 2015

CaseChat Overview and Summary

The applicant, born in November 1992 in the USA and a citizen of the USA, sought an Other Family (Residence) visa. His father, born in Iran and an Australian permanent resident since 9 July 2009, was the sponsor. The Tribunal was tasked with deciding if the applicant met the criteria for a Subclass 835 visa, which requires the applicant to be a 'remaining relative' of an 'Australian relative' who is usually resident in Australia and has no near relatives, except those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal first examined whether the applicant's father met the criteria of being usually resident in Australia. Based on Department movement records, the Tribunal found that the father was indeed usually resident in Australia. However, the Tribunal found that the applicant did not meet the definition of a 'remaining relative' because he had a half-brother residing in the USA, which constituted a near relative not usually resident in Australia. Additionally, the applicant did not qualify for any other visa subclass, such as an Aged Dependent Relative visa or a Carer visa, as he did not meet the relevant criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicant an Other Family (Residence) visa. The Tribunal concluded that the applicant did not meet the prescribed criteria for a Subclass 835 visa and no other visa subclass.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant was born in November 1992 in the USA and is a citizen of the USA. His mother died on 30 July 2010 (death certificate sighted by the Tribunal). His father remarried and he and his spouse and the applicant’s half-sister reside in Australia. The applicant has a half-brother born in November 2001 residing in the USA. The applicant has never been married or in a de facto relationship. He was granted a Work and Holiday visa (Temporary) (subclass 462) and arrived in Australia on 17 August 2014. This visa ceased on 17 August 2015. The applicant’s sponsor is his father. He was born in Iran and has been an Australian permanent resident since 9 July 2009. He has never departed Australia since that date. The applicant has been residing with his father since his arrival in Australia.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the remaining relative of his father who is an Australian permanent resident.Is the applicant a remaining relative of an Australian relative? 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. 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’. 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. The requirement to be a parent or sibling: r.1.15(1)(a) As the Australian relative in this case is the father of the applicant, r.1.15(1)(a) is met.Whether the Australian relative is usually resident in Australia: r.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 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. Based on Department movement records, Tribunal is satisfied that the applicant’s father is usually resident in Australia, and therefore r.1.15(1)(b) is met.No near relatives: r.1.15(1)(c)

Evidence

Evidence Before The Court

The applicant’s sponsor is his father. He was born in Iran and has been an Australian permanent resident since 9 July 2009. He has never departed Australia since that date. The applicant has been residing with his father since his arrival in Australia.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the remaining relative of his father who is an Australian permanent resident.Is the applicant a remaining relative of an Australian relative? 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. 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’. 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. The requirement to be a parent or sibling: r.1.15(1)(a) As the Australian relative in this case is the father of the applicant, r.1.15(1)(a) is met.Whether the Australian relative is usually resident in Australia: r.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 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. Based on Department movement records, Tribunal is satisfied that the applicant’s father is usually resident in Australia, and therefore r.1.15(1)(b) is met.No near relatives: r.1.15(1)(c) 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. ‘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.

Decision

Reasons for decision

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. The applicant is not old enough to qualify for an age pension and therefore does not meet the criteria for an Aged Dependent Relative visa (subclass 838). The applicant has not made any claims to be the carer of an Australian relative and therefore does not meet the criteria for a Carer visa (subclass 836).DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Belinda Mericourt 18 August 2015MemberATTACHMENT - 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

The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Belinda Mericourt 18 August 2015MemberATTACHMENT - 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).