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

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).
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.
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.
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1831801 (Migration)

Details

AGLC: 1831801 (Migration) [2019] AATA 3138
Case: [2019] AATA 3138
Decision Date: 11 June 2019

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 115 (Remaining Relative) visa. The primary visa applicant, Mr C, sought to establish that he was the remaining relative of his Australian permanent resident father, Mr D. The decision was made by Member Margie Bourke of the Tribunal.

The core legal issues before the Tribunal were whether Mr C qualified as a "remaining relative" of Mr D, an "Australian relative," and whether Mr C and his spouse had no "near relatives" offshore, as required by the Migration Regulations 1994. Specifically, the Tribunal had to determine if Mr D was a parent of Mr C, if Mr D was usually resident in Australia, and if Mr C had no near relatives other than those usually resident in Australia and who were Australian citizens or permanent residents.

The Tribunal found that Mr D was indeed the father of Mr C and was an Australian permanent resident at the time of the application, thus satisfying the definition of an "Australian relative." The Tribunal also considered the definition of "usually resident" in Australia, referencing established case law that emphasises both physical residency and intention, and the principle that a person's usual abode is where they eat, sleep, and have their settled abode. While the Tribunal was satisfied that Mr D met the criteria of being a parent and an Australian relative, and that Mr C met the requirement of having no near relatives offshore, the decision was remitted for reconsideration of the remaining criteria for the visa. The Tribunal directed that the primary visa applicant meet criteria under clauses 115.211, 115.212, and 115.221 of Schedule 2 to the Regulations, and that the secondary visa applicants meet the criteria under clause 115.311 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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? 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. 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’. 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) 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) 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.

Decision

Reasons for decision

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 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.Margie BourkeMemberATTACHMENT - Extracts from the Migration Regulations 19941.15 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).

Ratio Decidendi

Legal Principle Established

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 BourkeMemberATTACHMENT - Extracts from the Migration Regulations 19941.15 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).