1509303 (Migration)

[2016] AATA 4387

1509303 (Migration) [2016] AATA 4387 (25 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Erle Avon Hartley
Ms Leslie Hartley
Ms Erin Carida Hartley
Ms Geraldine Rhona Sefton

CASE NUMBER:  1509303

DIBP REFERENCE(S):  CLF2015/18252

MEMBER:Margie Bourke

DATE:25 August 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 25 August 2016 at 12:56pm

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 23 June 2015 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 24 March 2015. 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 applicants are 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.

3. The delegate refused to grant the visas on the basis that the first named visa applicant did not meet the criteria of cl.835.212 because he did not meet the definition requirements of remaining relative in r.1.15, and the second, third and fourth named visa applicants did not meet the requirements of cl.835.321 because the first named visa applicant did not satisfy the primary criteria.

4. The applicants appeared before the Tribunal on 25 August 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the first named visa applicant is the remaining relative of Danford Digby Hartley 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).

   First Named Visa Applicant

7. Based on the birth certificates of the first named visa applicant and Danford Digby Hartley, which record they have the same parents, the tribunal is satisfied that they are brothers, and close relatives within the meaning of r.1.03.

8. Based on the certificate of Australian citizenship issued 12 December 1985, the tribunal is satisfied that Danford Digby Hartley is an Australian citizen.

9. In this case the tribunal is satisfied that Danford Digby Hartley is the applicant’s brother and is an Australian citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

10. 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.

11. 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’.

12. 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)

    For the reasons set out above the tribunal is satisfied that the Australian relative in this case is the brother of the applicant, and therefore the first named visa applicant meets the requirements of r.1.15(1)(a).   

    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 evidence before it the tribunal is satisfied that the Australian relative migrated to Australia with his wife and children in 1983 and obtained his Australian citizenship in 1985. The tribunal is satisfied that the Australian relative owns his own home, and has resided in the house for seven years, and has retired from work at the time of this decision. The tribunal is satisfied based on this evidence that the Australian relative is usually resident in Australia.  As the tribunal is satisfied that the Australian relative is usually resident in Australia, the first named visa applicant meets the requirements of r.1.15(1)(b).   

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

15. 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.

16. ‘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.

17. The first named visa applicant gave evidence that he has a brother Wyndham who resides in Cape Town in South Africa. The first named visa applicant gave evidence that he has a son Wesley who resides in Mooi River in South Africa. The first named visa applicant gave evidence that his wife has a half brother Martin who lives in Johannesburg in South Africa. The first named visa applicant stated that his brother and son reside in South Africa at the current time.

18. The evidence at the hearing was consistent with the written evidence provided by the applicants in the application for the visa and the written evidence provided to the Department and the tribunal. The tribunal is satisfied that the first named applicant has near relatives other than near relatives who are usually resident in Australia and are Australian citizens or Australian permanent residents or eligible New Zealand citizens. The tribunal is satisfied based on the oral and written evidence before it that the first named visa applicant does not meet their requirements in r.1.15(1)(c) for a remaining relative because he does have near relatives who are not usually resident in Australia and who are usually resident in South Africa.

19. For these reasons, the Tribunal is satisfied there are near relatives other than those permitted by the regulations and therefore the first named visa applicant does not meet the requirements of  r.1.15(1)(c).

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

    Second, Third and Fourth Named Visa Applicants

21. The tribunal is satisfied that the second, third and fourth named visa applicants are the spouse, mother-in-law and daughter of the first named visa applicant.

22. In the delegate’s decision record dated 23 June 2015 these three visa applicants were refused to be granted the visa on the grounds they did not meet the requirements of cl.835.321. The requirements of cl.835.321 are that the visa applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 835 visa.

23. The first named visa applicant did not satisfy the primary criteria as he did not meet the requirements of cl.835.212 or cl.835.221, and therefore the tribunal is satisfied that the second, third and fourth named visa applicants are not the members of the family unit of a person who having satisfied the primary criteria, is the holder of a Subclass 835 visa.  For this reason the tribunal is satisfied that the second, third and fourth named visa applicants do not meet the requirements of cl.835.321.

    Conclusion

24. For the reasons above, the four visa applicants do 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 applicants meet prescribed criteria for the visa sought.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Ministerial intervention

26. The tribunal considers this is an appropriate matter to bring to the Minister’s attention for the possible exercising of his discretion pursuant to s.351 of the Act. The tribunal notes the four visa applicants are of varying ages from 19 to 75 years, and all have been in Australia for over seven years. The tribunal notes that the visa applicants sold their home, and their assets, and invested in a business in Australia with the object of applying for a business visa.

27. They invested in the business with a migration agent, who defrauded them of their funds. This fraud was recognised by the police and the courts, and the agent and his partner were sentenced to jail terms (in excess of two years but suspended). The tribunal has considered various documents including the sentencing judge’s remarks.   As a consequence the visa applicants were left in a situation where they could not apply for the business visa and were without funds. They have with the financial assistance of other family members managed to establish another business, whilst the youngest of the visa applicants has attended school for seven years.

28. The tribunal considers that there are strong compassionate circumstances involving the financial investment from Australian citizens who have assisted the visa applicants with their current business. The tribunal considers that there are compassionate circumstances regarding the psychological state of what the visa applicants have endured in Australia, particularly given the youth and age of two of the visa applicants. The tribunal also considers there are exceptional circumstances in this case where the fraud involved was of such a serious nature that it involved criminal prosecution and jail terms.

    Margie Bourke
    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).