1602845 (Migration)

[2016] AATA 4514

1602845 (Migration) [2016] AATA 4514 (6 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Salvador IV Quimpo

CASE NUMBER:  1602845

DIBP REFERENCE(S):  CLF2015/61039

MEMBER:Helena Claringbold

DATE:6 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl.835.212 of Schedule 2 to the Regulations; and

·cl.835.221 of Schedule 2 to the Regulations.

Statement made on 06 October 2016 at 3:13pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 September 2015, Mr Salvador Iv Quimpo applied for an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act). The application was made on the basis that Mr Quimpo was the remaining relative of Ms Rosario Mayobelle Quimpo-Perez, his sponsor.

2. On 16 February 2016, a delegate of the Minister for Immigration refused to grant the visa. The delegate was not satisfied that Mr Quimpo met regulation r.1.15 and cl. 832.212 of Schedule 2 to the Migration Regulations (the Regulations).

3. At the time of application 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

4. Mr Quimpo requested review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision records.  He appeared before the Tribunal on 20 September 2016 to give evidence and present arguments. The Tribunal also received evidence from Ms Rosario Mayobelle Quimpo-Perez and Ms Felicitas Alag Jones. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Department’s file CLF2015/61039, folios numbered 1-90, and the Tribunal file 1602845, folios numbered      1-69 and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in this case is whether Mr Quimpo is a remaining relative of an Australian relative.

   BACKGROUND

8. Mr Quimpo was born on 14 October 1973.  He is a national of the Philippines.  His father is deceased.  His mother, three sisters and a brother reside in Australia.  At the time of application he provided information that he is separated from his wife, Evangeline Tanyag Quimpo.  His son, Dominic Tanyag Quimpo, born on 13 September 1998 and daughter, Nicole Tanyag Quimpo, born on 5 May 2001, reside in the Philippines. 

   Whether the sponsor is an Australian relative who is usually resident in Australia:     r.1.03 and r.1.15(1)(b)

9. The visa application was made on the basis that the applicant is the remaining relative of Ms Rosario Mayobelle Quimpo-Perez, who the applicant claims is his 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).

10. 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.

11. In this case Ms Quimpo-Perez is the applicant’s sister.  She was granted Australian citizenship on 12 April 2000 and is residing in Australia and therefore is an Australian relative for these purposes. Therefore, r.1.03 and r.1.15(1)(b) are met.

    Is the applicant a remaining relative of an Australian relative?

12. 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.

13. 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’.

14. 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.

    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.

17. 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’; r. 1.15(2)(ii) 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. In November 2015, the applicant declared that his two children are “under the care of his ex-partner’s mother”, Gloria M Tanyag (in the Philippines) and have been under her care since the applicant came to Australia in July 2015.

19. In February 2016, Ms Tanyag provided the following information: since the applicant separated from his partner the children have been in the primary care, control and sole custody of the applicant.  When the applicant visited Australia In July 2015, she provided care for the children on a temporary basis.  The applicant continues to financially support the children and is the parent responsible for all decisions made about them.

20. On 3 March 2016, the applicant provided the following information: he misunderstood the question about his children’s care and responded about the physical care for them at that exact time.  However, since 2011 when he separated from his partner, he has had sole custody of the children.  The children lived with him and he has been responsible for their daily care and well-being.  He continues to have sole custody and is responsible for the children’s daily care and control including providing for their daily needs, education and in making decisions for their welfare.

21. On 29 August 2016, Felicitas Alag Jones, who is the applicant’s mother, provided the following information, that since August 2011, the children, Dominic and Nicole, have been the sole responsibility of the applicant. He has decided their education and welfare and they have been under his care and control.  The applicant came to Australia in July 2015 to visit his brother who was sick.  He did not bring the children with him because of their schooling and he left them in the temporary care of their grandmother in the Philippines.  The applicant has sole custody, care and responsibility for his children and continues to care for his children; he supports them financially and communicates with the children’s grandmother and makes decisions about their welfare.

    The Tribunal hearing

22. Mr Quimpo’s evidence agreed with the information detailed in this decision record at paragraphs 8, 18, 19, 20 and 21.  In addition, he told the Tribunal that since his wife left the family home in 2011, he has sole responsibility for his children. This includes financially supporting them, guiding their education and handling any problems that may occur on a daily basis.  He said that although the children are physically living with their maternal grandmother in the Philippines, this arrangement is temporary.  He stated that prior to the children living with their grandmother they lived with him.  The children were and are substantially in the applicant’s daily care and control because although he is temporarily separated from them, he manages all aspects of their lives.  He pays for their education, their clothing, medical bills and food.  And when they are in need of anything else, he gives permission to the children’s grandmother to provide the additional resource to the children.  He said he speaks with the children on alternate days.  The Tribunal was told that Dominic is in year 9 and Nicole is in year 7. 

23. The witnesses provided information in agreement with the applicant’s evidence.

24. The Tribunal has considered the evidence individually and as a whole and is satisfied the applicant is responsible for the day-to-day upbringing of Dominic Quimpo and Nicole Quimpo.  The applicant provides for the children financially; is in regular contact with them; directs their education, health and general matters.  As a result the Tribunal is satisfied that Dominic and Nicole are substantially in the daily care and control of the applicant. 

25. For these reasons, the Tribunal is satisfied that the applicant has no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is met.

    Other considerations

26. At the time of visa application Dominic Quimpo and Nicole Quimpo were included in the visa application form.  However, as they were not in Australia at the time the visa application was lodged, their visa applications were invalid.

27. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

28. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cl.835.212 of Schedule 2 to the Regulations; and

    ·cl.835.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    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).