1707831 (Migration)

[2017] AATA 2997

1707831 (Migration) [2017] AATA 2997 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707831

MEMBER:Margie Bourke

DATE:4 December 2017

PLACE OF DECISION:  Melbourne

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.

Statement made on 04 December 2017 at 10:32am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 – Sponsor – Sister – Australian citizen – No formal documentation of relationship – Applicant displaced during the civil war – Reunited with siblings in Australia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 1.15(1)(a)-(c), 1.15(2) Schedule 2 cls 835.212, 835.221

CASES
Axon v Axon (1937) 59 CLR 395
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 8 January 2013 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 April 2011. 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.835.212 which requires that at the time of application the applicant is a remaining relative of an Australian relative.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied that the applicant met the requirements for remaining relative as defined in r.1.15.

4. The matter is before the tribunal having being remitted from the Federal Circuit Court in a judgment dated 5 April 2017 because the previous tribunal differently constituted failed to consider the country information placed before it, and failed to actively engage in the material before it.

5. The applicant appeared before the tribunal on 21 November 2017 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s sister and sponsor [Ms A], and the applicant’s brother-in-law [Mr B].  The tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing.

7. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the remaining relative of [Ms A], 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).

9. I have considered the sponsor’s certificate of Australian citizenship granted 22 July 2010, and I am satisfied that she is an Australian citizen at the time of application. 

10. I accept that there are no birth certificates, family registration cards or UNHCR cards available that record the relationship between the applicant and the sponsor. I have considered the consistent oral and written evidence that the applicant is the brother of the sponsor, the consistent evidence that led to the separation of the siblings, and the consistent evidence of the efforts for the applicant to remain near the sponsor after they were reunited in 2011. I have considered the applicant’s immediate willingness to undergo DNA testing if required to confirm his biological sibling relationship with his sister, the sponsor. I am satisfied based on the evidence before me that the applicant and sponsor are brother and sister, and are close relatives within the meaning of r.1.03.

11. In this case [Ms A] is the applicant’s sister and an Australian citizen and therefore is an Australian relative for these purposes.

    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.

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

15. For the reasons stated above, I am satisfied the sponsor [Ms A]is the sister of the applicant, and an Australian citizen. As the Australian relative in this case is the sister of the applicant, the requirement of r.1.15(1)(a) is met by the applicant.

    Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

16. 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.

17. Based on the oral evidence of the sponsor, I am satisfied she arrived in Australia in 2007, and has not departed Australia since that time.  I am satisfied the sponsor has resided at the same address in Australia since 2007, and been employed at the same community centre for five years.  I am satisfied the sponsor is married, and her husband and two adult children also reside in Australia. For these reasons I am satisfied the sponsor is usually resident in Australia.

18. As the Australian relative is usually resident in Australia, the applicant meets the requirements of r.1.15(1)(b).

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

19. 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.

20. ‘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.

21. Based on the consistent evidence of the applicant’s personal history, I am satisfied of the following facts. The applicant declared his precise date of birth, which I will record here was in the year 1986. The applicant’s village of Kuajok in Sudan was attacked in 1990, and the family fled.  The applicant was then aged four years, and he was assisted by elders from the village to flee and was separated from his family, and afterwards lived in a foster home in Kenya.  At the time of application he was 24 years.  He had left Sudan aged 14 years, and lived for ten years under the “lost boy” program in America.  The applicant was given a contact telephone number for his sister [Ms C] in 2006, and he was reunited with his siblings in 2011 when he came to Australia.

22. Based on the consistent evidence of the family’s circumstances I am satisfied of the following facts.  The applicant has four sisters, [Ms A], [Ms D], [Ms C] and [named person] and one brother [Mr E], who all fled the village at the time of the fighting in 1990, when the family was separated. The five siblings subsequently came to Australia. [Ms A] and [Mr E] came together according to the travel document submitted. I accept that [Ms A] and [Mr E] were granted humanitarian visas.

23. Based on the statutory declarations of [Mr E], [Ms D], [Ms A] and the applicant I am satisfied that the applicant’s four sisters and his brother [Mr E] all reside in Australia. The written evidence in the application forms is that the five siblings who came to Australia and are now Australian citizens.  The applicant’s two parents and two other brothers [Mr F] and [Mr G], have not been seen since the time of the fighting in the village in 1990.

24. Based on the evidence before me I am satisfied that [Ms D] returned to what is now South Sudan in 2013 and 2015 to try to find family members.   [Ms D] and [Mr B], wished to marry and together they returned to Sudan to try to locate their parents to seek their blessing for the marriage. Enquiries through contacts, through authorised and government agencies, and through the direct enquiries by the visits of [Ms D] and [Mr B] to South Sudan did not disclose any trace of the applicant’s parents of his two brothers [Mr F] or [Mr G] since 1990.

25. Written advice from the Red Cross dated 5 December 2013 is that the family have exhausted all possible available search options to trace the applicant’s parents.

26. I have considered the previous tribunal decision record raised some issues about the evidence in relation to the completion of the application form and other documents submitted in support of the application.   Based on the consistent evidence at the hearing, I make the following findings.  I accept that the application form was filled in by [Mr B], a social worker who assisted the community, in 2011. (I note [Mr B] subsequently married the applicant’s sister [Ms D].)  I accept that he copied some written information from an earlier form completed by an elder of the [community].  I accept [Mr B] started a new form because the previous form had many “scratchings out” on it. I accept the applicant did not write on the form, but was present when the first form was written on by [the elder]and when the second form  was written on by [Mr B].  I accept  that the applicant signed the form, knowing what was recorded on it, having being present at the discussions about the questions asked on the form.   I accept that [Ms A] and the applicant were present when the application form and other documents were completed by [the elder] and [Mr B]. I accept the applicant parents’ names were recorded in the application form because there was a specific place for the names of parents.  I accept the applicant’s brothers [Mr F] and [Mr G] were not recorded in the application form as his missing two brothers because they were not in Australia, and the names of the siblings in Australia were recorded on the form.

27. I am satisfied that at the time of application the applicant and the sponsor had not heard from his parents or two brothers [Mr F] and [Mr G] for 21 years, and that his parents and two brothers were all missing presumed dead from the fighting in the village of Kuajok in 1990.  I have considered the evidence of the applicant and the witnesses in the hearing.  I have considered the written submissions from [a named person] (from Relationships Australia), statutory declarations and submissions in relation to Dinka culture and how it responds to missing persons. I am satisfied that in Dinka culture if a person’s death is not actually witnessed, the person is not referred to as deceased. This keeps that sliver of “hope” although in reality the person is considered to be missing presumed dead. 

28. For this reason the applicant and sponsor recorded on the application form that Sudan was his parents’ country of residence, rather than that they were either deceased or missing presumed dead. I note in the Family Composition the parents’ whereabouts was recorded as unknown but living in South Sudan.   I accept the family could not participate in the traditional ceremonies after the death of a family member, and according to Dinka culture, and the family could not refer to these missing family members as deceased.

29. I am satisfied based on all the evidence before me, the applicant’s parents and his brothers [Mr F] and [Mr G] have been missing since 1990, when the village of Kuajok was attacked. I am satisfied that the applicant’s parents and two brothers [Mr F] and [Mr G] are presumed to be deceased.  I am satisfied that the reason the applicant’s parents were not recorded as deceased on the application form  and the family composition form, is in accordance with  Dinka culture.

30. I have also considered the common law presumption of death as espoused in the case of Axon v Axon (1937) 59 CLR 395. The common law presumption of death requires that at least seven years must have elapsed since the person was last seen or heard from, and in circumstances where the person would be expected to be seen or heard from, where no-one has had any communication from that person or learnt of his or her whereabouts, the person may be judicially found to be deceased.

31. In this matter, I am of the view that the presumption of death after the expiration of a period of 21 years at the time of application can also be engaged. I am satisfied based on the evidence before me that the applicant’s parents and his brothers [Mr F] and [Mr G] have not been seen or heard from, of communicated from, and no-one has learnt of their whereabouts for 21 years at the time of application. I am satisfied based on the consistent evidence before me, that the applicant’s parents, and the applicant’s two brothers [Mr F] and [Mr G], are presumed deceased at the time of application.

32. I am satisfied the applicant has no near relatives other than his four sisters and one brother who reside in Australia. I am satisfied that the applicant has no near relatives other than near relatives who are usually resident in Australia.

33. For these reasons, the tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore the applicant meets the requirements of r.1.15(1)(c).

34. For the reasons set out above, the tribunal is satisfied that the applicant is the remaining relative of an Australian Relative at the time of application for the purposes of cl.835.212.

35. 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

36. 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.

    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).