1515703 (Migration)

[2016] AATA 4615

1515703 (Migration) [2016] AATA 4615 (28 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Gloria Patricia Rosina Long

VISA APPLICANT:  Mr John Alfred George Hughes

CASE NUMBER:  1515703

DIBP REFERENCE(S):  2015044173

MEMBER:Michelle Grau

DATE:28 October 2016

PLACE OF DECISION:  Brisbane

DECISION:The tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 28 October 2016 at 3:30pm

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 26 October 2015 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 March 2015. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that cl.115.211 was not met because the visa applicant had two daughters in the UK and therefore he did not meet the remaining relative definition in r1.15 (1) (c).

4. The review applicant appeared before the tribunal on 28 October 2016 to give evidence and present arguments. The tribunal also received oral evidence from the review applicant’s husband.

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 visa applicant is the remaining relative of Gloria Long, who the visa 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).

7. In this case Mrs Long is the visa applicant’s sister and an Australian permanent resident, and therefore is an Australian relative.

8. The issue in this case is whether the visa applicant meets the remaining relative definition. In this case the particular issue is whether he has any “near relatives” as defined by r1.15(2).

   Is the visa applicant a remaining relative of an Australian relative?

9. To be granted a Subclass 115 visa the visa 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.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15(1) (c) 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 visa applicant and is ‘usually resident in Australia’.

11. The visa 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 visa applicant is an adopted child.

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

12. As the Australian relative in this case is the sister of the visa 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 her movement records, the tribunal accepts the review applicant is usually resident in Australia. The tribunal finds r.1.15(1)(b) is met.

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

15. The issue in this case is whether the visa applicant has any “near relatives”. If he has ‘near relatives’ they must be usually resident in Australia as Australian citizens or permanent residents or eligible New Zealand citizens to meet r.1.15(1)( c).

16. ‘Near relative’ is defined in r.1.15(2) of the Regulations. It 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. It is not in dispute that the visa applicant is divorced and has two adult daughters who live in the UK with their families. The tribunal finds the visa applicant has two children, both of whom are over 18 years and who are not dependent upon him. It is not in dispute that they are UK citizens and not Australian citizens, permanent residents or New Zealanders. 

18. The review applicant and her husband told the tribunal the visa applicant was on his own and the daughters had moved away (though were still in the UK) and he was alone. The daughters have their own families. The visa applicant had a pension and was self-sufficient and wanted to invest. There were 21 members of the review applicant’s family in Australia and they could support the visa applicant at the outset.

19. The tribunal accepts that evidence. However, it does not change the fact that the visa applicant has two adult daughters, over 18 years of age, who are not dependent upon him.  Accordingly the visa applicant has two near relatives as defined in r.1.15(2).

20. The tribunal finds the visa applicant has two near relatives, being his two daughters and they live in the UK.

21. As noted above, if the applicant has ‘near relatives’ they must be usually resident in Australia as Australian citizens or permanent residents or eligible New Zealand citizens to meet r.1.15(1)( c).

22. The tribunal finds the visa applicant’s daughters are not Australian citizens, permanent residents or eligible New Zealanders and they do not usually reside in Australia.

23. As a result, the visa applicant does not meet the remaining relative definition in r1.15(1) (c ).

24. For these reasons, the tribunal is not satisfied there are no near relatives other than those permitted by the regulations[1]. Therefore r.1.15 (1)(c) is not met.

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

    [1] ie. Australian permanent residents, citizens or eligible New Zealand citizens usually resident in Australia are permitted by the regulations

25. If the visa 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.115.211/115.221

26. For the reasons set out above, the tribunal is not satisfied that the visa applicant is the remaining relative of an Australian relative at the time of application and the time of decision for the purposes of cl.115.211 and cl.115.221.

27. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.  At hearing it was confirmed the visa applicant is self-sufficient and not dependent upon the review applicant. Further, the review applicant acknowledged that while she needed care sometimes, her husband looks after and she has family.

    DECISION

28. The tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) 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).