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’ 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.
There is no dispute that the applicant’s sponsor is his biological father and his mother is deceased.
The applicant and his father have acknowledged that the applicant’s half-brother resides in the USA. The applicant told the Tribunal that he has no relationship with his half-brother who is 10 years younger than himself. He has had no contact with him since he left the family home after his mother’s death in July 2010 and moved into his own apartment where he was supported financially by his father. He stated that he has no support or kinship ties in the USA. His father has been fully financially supporting him since his mother died.
The applicant’s father submitted that the Migration Act does not specifically include half siblings in the definition of ‘near relative’. He drew the Tribunal’s attention to the Acts Interpretation Act, 1901 s.15AA which states that “in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation.” The applicant’s father argued that a Remaining Relative visa is for people who are the only members of their family left outside Australia. The legislation specifically excludes people under the age of 18 years from sponsoring a remaining relative. Therefore an interpretation should be made that the same exclusion apply to a child who is a half-brother from the definition of ‘near relative’. It would be ‘manifestly unreasonable’ under s.15AB of the Acts Interpretation Act to include a child who is a half-sibling as a near relative as this visa class caters for relatives left alone in the country of origin with no family support outside of the family in Australia. The Department’s policy manual states that “these visas reflect immigration principles relating to reunion of relatives in recognition of kinship ties and the bonds of mutual dependency on support within families. “ With the death of the applicant’s mother five years ago the applicant was left alone in a foreign country where he has no one but a half-brother who is a child with whom he has no relationship. A child cannot be considered a near relative that the applicant can rely on for support in a country where he has no other relatives. The Australian relative sponsor for a Remaining Relative visa must be at least 18 years old and therefore, the definition of ‘near relative’ must mean to denote only adult relatives who can provide support for their only other near relative.
The Tribunal had to regard to case law. In Mercado v MIAC,[1] the Federal Magistrates Court considered whether the reference to ‘brother’ in the definition of ‘overseas near relative’ for the purposes of the definition of ‘remaining relative’ in r.1.15 included or excluded a ‘half-brother’. In that matter, the Tribunal relied on the Macquarie Dictionary definition of ‘brother’, which included reference to a ‘half-brother’, in construing the regulation. The Court noted that the Act and Regulations make no reference to the class of persons defined as ‘half-brother’, but accepted the Minister’s submission that there is no apparent policy reason why a half-brother would be excluded, particularly having regard to the inclusion of ‘step-brothers’. In Mercado v MIAC, Lloyd-Jones FM commented:
The half-brother relationship is permanent because of the genetic link whereas a step relationship is by its nature more transient and certainly not permanent… The denial of the reunion of a blood relative, while permitting a reunion based on marriage which may be dissolved at any time, does not appear compatible with the overall intent of the legislation. In the circumstance, I am satisfied that in the absence of direct reference to the status of “half-brother” in the Act or Regulations, the approach adopted by the Tribunal was correct.[2]
[1] [2007] FMCA 1216 (Lloyd Jones FM, 26 July 2007).
[2] Mercado v MIAC [2007] FMCA 1216 (Lloyd Jones FM, 26 July 2007) at [33].
Relevantly, in Claridge v MIBP[3] the Court agreed with the reasoning set out in Mercardo and found that the term ‘brother’ included ‘half-brother’.[4] The Court noted that while the meaning to be ascribed to words may change from time to time, there is judicial authority of some antiquity supporting the reasoning adopted in Mercado[5].
[3] [2013] FCCA 1953 (Burchardt J, 6 December 2013)
[4] Claridge v MIBP [2013] FCCA 1953 (Burchardt J, 6 December 2013) at [31]-[36].
[5] Claridge v MIBP [2013] FCCA 1953 (Burchardt J, 6 December 2013) at [35].
Based on the above case law the Tribunal considers that the applicant’s half-brother meets the definition of ‘near relative’ for the purposes of the Migration Act. It is not relevant whether the applicant’s half-brother is a child or an adult as the reference to exclusion of children refers to sponsorship only. Therefore the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and r.1.15(1)(c) is not met.
Given the above finding, the Tribunal is not 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.
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 2015
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).