1831801 (Migration)

[2019] AATA 3138

1831801 (Migration) [2019] AATA 3138 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831801

MEMBER:Margie Bourke

DATE:11 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 115 (Remaining Relative) visa:

·cl.115.211, cl.115.212 and cl.115.221 of Schedule 2 to the Regulations;

The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the secondary visa applicants meet the following criteria for a Subclass 115 (Remaining Relative) visa:

·cl.115.311 of Schedule 2 to the Regulations.

Statement made on 11 June 2019 at 10:40am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 115(Remaining Relative visa)– Australian relative is usually resident in Australia – family circumstances – sufficient evidence provided – visa applicant had no near relatives offshore –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 1, Schedule 2, cls 115.211, 115.221, 115.311

CASES
Hafza v D-G of Social Security (1985) 6 FCR 444
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Ignatious v MIMIA [2004] FCA 1395
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 20 September 2018 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 8 December 2014. 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 applicants are 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. Relevantly to this matter, the primary criteria to be met include cl.115.211 which requires the primary visa applicant is the remaining relative of an Australian relative.

3. The delegate refused to grant the visas on the basis that cl.115.211 was not met by the primary visa applicant because the delegate was not satisfied that the primary visa applicant met the definition of remaining relative in r.1.15.

4. The review applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant via telephone, and the review applicant’s other son [Mr A] and the review applicant’s wife, [Ms B].  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.  The hearing which had been scheduled for 23 May 2019 had been postponed at the request of the review applicant because his representative was not able to attend the hearing on 23 May 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the primary visa applicant [Mr C] is the remaining relative of the review applicant [Mr D], 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). Based on the translated notarial certificate which records [Mr C]’s parents I am satisfied that [Mr D] is his father, and a close relative for the purposes of r.1.03. Based on the travel documents and visa documents provided to the tribunal after the hearing, I am satisfied that [Mr D] is an Australian permanent resident at the time of application.

8. In this case [Mr D], the review applicant, is the primary visa applicant’s parent and an Australian permanent resident and therefore is an Australian relative for these purposes.

   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 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. For the reasons stated above I am satisfied that [Mr D] is the father of the primary visa applicant [Mr C]. As the Australian relative in this case is the father of the primary visa applicant, [Mr C] 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 me I am satisfied that [Mr D] has been the holder of an Australian permanent resident visa since May 2010, and has resided in Australia since that time.  I am satisfied that [Mr D] has departed Australia for short periods, including for two weeks in 2011 to be present with his wife at the time his granddaughter was born in [Country 1]. I am satisfied that [Mr D]’s usual place of abode is his residential addresses in Melbourne. For these reasons I am satisfied that [Mr D], the primary visa applicant’s Australian relative, is usually resident in Australia.

15. As the Australian relative is usually resident in Australia, the primary visa applicant, [Mr C] meets the requirements of r.1.15(1)(b).

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

16. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

17. ‘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.

18. I am satisfied the primary visa applicant has the following near relatives: his parents, his brother and his two children, within the meaning of near relative in r.1.15(2). I am satisfied based on the documents provided that [Mr C] is divorced from his ex-wife, and was divorced before the time of application. I am satisfied that [Mr C] had been living and working in [Country 1], but returned to China with the children and his ex-wife to go through the divorce procedure. I am satisfied that the children have not been in the care or custody of their mother since the divorce.

19. I am satisfied based on the application forms and other evidence before me that the two children of the primary visa applicant are minors, having been born in 2008 and 2011.  I am satisfied that the two children are part of a combined application for the subclass 115 visa, and are secondary visa applicants in this review.

20. I am satisfied that the primary visa applicant’s brother [Mr A] is an Australian citizen, he is married with two Australian born children, and resides in Australia.

21. As stated above I am satisfied that the primary visa applicant’s father, [Mr D] is an Australian permanent resident and is usually resident in Australia.

22. The evidence before is that [Mr C] stated he needed to return to his employment in [Country 1], to financially support his daughters.  He could not take the children with him to [Country 1] without someone to care for them.  The evidence before me is that [Mr D] owns a house and is the ‘head’ of the household in [Putian] City, Fujian Province, China, and the children were able to stay there. The children’s maternal grandmother, the mother of the primary visa applicant, [Ms B] had stayed with [Mr C] and his family in [Country 1] and provided care for the children for a period of three months in 2011.  When the children were placed in the custody of [Mr C] after the divorce in 2014, [Ms B] again provided the care for her grandchildren.

23. Based on the notification letter from the Department of the grant of the Subclass 143 visa to the review applicant [Mr D] and [Ms B], dated 4 March 2010 provided to the tribunal after the hearing, I am satisfied that [Ms B] is also the holder of an Australian permanent  resident visa, granted in 2010. She arrived in Australia on 29 May 2010. The issue as to whether [Ms B] is a near relative of [Mr C] who is usually resident in Australia is based on the amount of time that she has spent out of Australia since the grant of her Subclass 143 Contributory Parent visa in May 2010.

24. In 2011, [Ms B] was in [Country 1] at the time the youngest daughter of [Mr C] was born, and she stayed for over four months. [Ms B] returned to [Country 1] to assist with the care of the  children the following year, and was out of Australia for over eighteen months.  After the primary visa applicant returned to China with his children and the divorce process was finalised in May 2014, I accept that [Ms B] assumed the role of main carer of the children, and travelled to China to do this, living in the family home in Fujian Province. I accept that [Ms B] was living with the two children at the time of application at the house in [the Town].  [Ms B] stayed with the children from May 2014 until February 2015.

25. Since that time [Ms B] has returned three times to China.  She returns each year to spend time with and care for her granddaughters for periods of three and a half months, two and a half months and six months, respectively.

26. I accept the evidence before me that the children’s mother did not want custody of the children, and that she was unlikely to form another relationship if she had two children. I accept that the divorce agreement stipulated that the care of the children was to be undertaken by the ‘husband’s side’. I accept that the maternal grandparents assumed the role of caring for their grandchildren, as they saw this as their responsibility, and this meant they applied for the visa for their son and grandchildren to live with them in Australia in December 2014.   I also accept the evidence that [Ms B] and the children have formed a close relationship prior to 2014.

27. I have carefully considered this evidence: - [Ms B]’s role as a caretaker for her grandchildren prior to [Mr C]’s divorce; The filing of the application for the remaining relative visa within months of [Mr C]’s divorce; and [Ms B] travelling to China to care for the grandchildren after the divorce, and while the application for the visa is being processed. I find this evidence indicates that the review applicant [Mr D] and his wife [Ms B] did not intend that [Ms B] usually reside outside Australia.  Rather the evidence indicates that [Ms B] intended to live with her grandchildren in the short term, and return with them to continue to reside in Australia. 

28. I am satisfied that [Mr C] returns to China for two months each year to care for and be with the children. I am satisfied that [Ms B]’s brother and his wife care for the children in her absence when she returns to Australia.  I am satisfied that [Ms B] regularly returns to Australia, and spends significant periods of time here, with her husband, her other son and his wife and children.

29. At the outset of the hearing the review applicant’s representative stated that it was conceded that [Ms B] was not usually resident in Australia at the time of application. The evidence before me indicates that there is basis for this statement. The primary visa applicant’s mother was not living in Australia because she was living in the family home in Fujian Province caring for her granddaughters, while her son, in whose custody the children had been placed, worked and lived in [Country 1].  Further, at the time of application in December 2014, [Ms B] had spent more than two years in total outside of Australia since being granted her permanent resident visa. However, as well as considering the physical presence of the relative in the particular place, I have also considered the intention of the relative to treat a place as home.  The evidence before me in the hearing, was that [Ms B] intended to treat Australia as home at all material times. I accept her departures and absence from Australia was brought about by her family circumstances, and her commitment to her son and grandchildren.

30. I have considered the principles espoused in Scargill v MIMIA (2003) 129 FCR 259 which requires the tribunal to consider factors of physical residency and intention as essential elements in the notion of usually ‘resides’.  I have considered the comments of Justice Wilcox in Hafza v D-G of Social Security (1985) 6 FCR 444, in relation to residence in a place where a person is not physically present depends upon an intention to return, and continue to treat that place as home.

31. I am satisfied, based on the evidence before me, that despite the substantial periods of time the primary visa applicant’s mother spent living outside of Australia caring for her two granddaughters, that she returned and maintained periods of physical presence in Australia, and at all times, including the time of application, and up to the time of decision, has maintained an intention to reside in Australia, to reside with her husband in Australia and treat Australia as her home.

32. For these reasons, I am satisfied that the primary visa applicant’s near relative, his mother, [Ms B], is an Australian permanent resident, and is 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 primary visa applicant meets the requirements of r.1.15(1)(c).

34. I am satisfied the primary visa applicant meets the definition requirements for remaining relative in r.1.15 at the time of application, and continues to do so at the time of decision. I am satisfied that [Mr C] is a remaining relative of an Australian relative at the time of application for the purposes of cl.115.211, and continues to satisfy this criterion at the time of decision for the purposes of cl.115.221.

35. For the reasons set out above, the Tribunal is satisfied that the visa 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.115.211 and cl.115.221.

    Sponsorship

36. Based on the application forms and other evidence before me, I am satisfied that the primary visa applicant is sponsored by the review applicant.  Based on the identification documents provided I am satisfied the review applicant [Mr D] has turned 18, and as stated above for the reasons set out, I am satisfied that he is a settled Australian permanent resident. Accordingly I am satisfied that the primary visa applicant [Mr C] meets the requirements of cl.115.212 at the time of application.

37. I am satisfied that the primary visa applicant meets the requirements of cl.115.211 and cl.115.212, and therefore he is a person who satisfies the primary criteria in Subdivision 115.21.

    Secondary visa applicants

38. Cl.115.311 requires the secondary visa applicants are members of the family unit of and made a combined application with, a person who satisfies the primary criteria in Subdivision 115.21.

39. I have considered the notarial certificates recording their births, and the divorce agreement recording the secondary visa applicants will be raised by their husband’s side. I am satisfied the secondary visa applicants are under the age of 18 years, and are the biological children of the primary visa applicant [Mr C]. I am satisfied that [Mr C] provides for the children’s financial support, and spends two months of each year with them, and arranges for family members to care for them in his absence. I am satisfied the children are not married or engaged. I am satisfied the secondary visa applicants are dependent children within the meaning of r.1.03, and are members of the family unit of [Mr C] within the meaning of r.1.12(1)(b).

40. I have considered the application forms, and other information and I am satisfied the secondary visa applicants made a combined application with [Mr C], their father and the primary visa applicant.  As stated above I am satisfied that [Mr C] is a person who satisfies the primary criteria in Subdivision 115.21.

41. For these reasons, I am satisfied that the two secondary visa applicants meet the requirements of cl.115.311 at the time of application.

42. 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 115 visa.

    DECISION

43. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 115 (Remaining Relative) visa:

    ·cl.115.211, cl.115.212 and cl.115.221 of Schedule 2 to the Regulations.

44. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the secondary visa applicants meet the following criteria for a Subclass 115 (Remaining Relative) visa:

    ·cl.115.311 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).