2001061 (Migration)

[2022] AATA 962

2001061 (Migration) [2022] AATA 962 (9 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001061

MEMBER:Brendan Darcy

DATE:9 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 09 March 2022 at 10:27am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – no near relatives other than specified citizens or permanent residents usually resident in Australia – second applicant’s siblings permanently estranged and whereabouts unknown – compassionate circumstances – Australian citizen mother’s age and mental health – contributions to community and character references – members of family unit – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 835.212, 835.321

CASES
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 Home Affairs on 10 January 2020 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 28 November 2019. 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 applicants are 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.212.

3. For the purposes of this decision, the first named applicant is referred to as the first applicant or the applicant; the second named applicant is referred to as the second applicant or the applicant’s spouse; the third named applicant is to be referred to as the third applicant; and the fourth named applicant as the fourth applicant.

4. The delegate refused to grant the visas on the basis that cl 835.212: the first applicant is a remaining relative of an Australian relative, on the basis that the first applicant did not meet the definition of ‘remaining relative’ as required by regulation 1.15.

5. As the first applicant did not satisfy the criteria for the grant of a Subclass 835 visa, the subsequent second, third and fourth applicants did not satisfy the secondary criteria for the grant of same subclass of visa: 835.321.

6. Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 21 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the first and second applicants. The Tribunal also received oral evidence from a witness, [Mr A], the first applicant’s biological brother. (The third and fourth applicants as young minors were not required to provide oral evidence.)

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

8. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing. At the end of the hearing, the applicants undertook to provide a post hearing submission. The Tribunal received a submission on 28 February 2022.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

10. Copies of the applicants and the witness’ birth certificates (with certified translations) are on the Departmental file ([Number]).

11. [The first applicant] was born [Date 1] in Moscow in the Russian Federation. Her name prior to marriage was [Previous name 1].

12. The second applicant was born on [Date 2] in Kuybyshev region of the Russian Federation. He claims to be the husband of the first applicant. A copy of the first and second applicants’ marriage certificate is on the Departmental file, indicating they were marred on [Date 3].

13. A copy of the second applicant’s name change certificate indicates his earlier surname was [Previous name 2] and that it was formally changed on 29 June 2009 to [the second applicant].

14. The third and fourth applicants were born on [Date 4] and on [Date 5] respectively. Both were born in the Russian Federation. It is claimed they are the biological children of the first and second applicants.  

15. The applicant arrived in Australia (not for the first time) [in] Deceber 2018 as holders of visitor visas. They applied for this Remaining Relative visa on 28 November 2019. They are citizens of the Russian Federation and the State of Israel.

16. The visa application was made on the basis that the applicant is the remaining relative of [Mr A], who the first applicant claims is their Australian near relative. It states in Form 47OF that [Mr A] is the brother of the first applicant and that he is an Australian citizen who is usually resident in Australia. His Russian birth certificate indicates he was born on [Date 6] in the Russian Federation. Australian citizenship was conferred upon [Mr A] [in] June 2013. 

17. 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: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

    Is the applicant a remaining relative of an Australian relative?

18. 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 reg 1.15 of the Regulations, which is set out in the attachment to this decision.

19. 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’.

20. 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: reg 1.15(1)(a)

21. As the Australian relative in this case is the biological brother of the applicant, reg 1.15(1)(a) is met.

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

22. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of reg 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 reg 1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

23. The Australian relative in this case migrated to Australia in 2008 with his mother. On Departmental file is evidence of his Australian citizenship. In this matter, there is no dispute that the applicant is a usual resident for the purposes of reg.1.15 at the time of application.

24. As the Australian relative is usually resident in Australia, reg 1.15(1)(b) is met.

    No near relatives: reg 1.15(1)(c)

25. 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.

26. ‘Near relative’ for these purposes is defined in reg 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.

27. The Tribunal accepts the first and second applicants are in a married spousal relationship. The first applicant does not claim to have any other siblings except [Mr A]. She also claims that her biological mother usually resides in Australia and that her father has passed away – which is accepted by the Tribunal.

28. The Tribunal further notes it is claimed that the first applicant’s step-parents (the second applicant’s parents) are deceased at the time of application – which is accepted.

29. However, the first applicant has declared in the Form 47OF that she has step-siblings by virtue of this married and that those step-sibling are living. The former mentions the living siblings of the second applicant, include:

    ·     [Mr B] (brother)

    ·     [Ms C] (sister)

    ·     [Ms D] (sister)

    ·     [Ms E] (sister)

30. It was also declared that the country of residence for each of the first applicant’s step-siblings reside in the Russian Federation and these people are not an Australian citizen, Australian permanent resident or New Zealand citizen.

31. During the scheduled hearing, the first and second applicant admitted that the applicant’s step-siblings resided in the Russian Federation at the time of applicant. It was further stated that to the best of their knowledge that the first applicant’s step-siblings remain usually residents in the Russian Federation and have not since passed away and that their whereabouts have become unknown.

32. The first and second applicant argued that the second applicant is deeply and irrevocably estranged from his siblings on the basis that that the second applicant’s marriage to a Jewish Russian was not acceptable to his siblings who held deeply antisemitic and chauvinistic prejudices towards the first applicant.  

33. The Tribunal explained to the parties that the current definition for ‘remaining relative’ does not include the quality or strength of familial relationship, such as the degree of estrangement, between the applicants and their near relatives residing outside of Australia.

34. Having considered all of the information before it, the Tribunal find that the applicant’s spouse has near relatives who are not usually resident in Australia and who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens.

35. Moreover, the evidence is that, at time of lodging this application, the applicant’s spouse had any near relatives other than those who are usually resident in Australia and who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

36. It follows from this, that the Tribunal, accordingly, is not satisfied there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is not met.

    Adopted child: reg 1.15(1)(d)

37. If the 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, reg 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.

    Summary

38. In this case, [Mr A] is the first applicant’s biological brother and was an Australian citizen at the time of application. Therefore, is an Australian relative for these purposes of subregulation 1.15(1)(a) and (b).

39. For the reasons outlined above, regulation 1.15 is not met because the first applicant did not meet subregualtion 1.15(1)(c) at the time of application.

40. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application for the purposes of cl 835.212. Neither does the first applicant satisfy the time of decision criteria under cl.835.221: the applicant continues to satisfy the criterion in clause 835.212.

41. As the first applicant does not satisfy cl.835.212 at the time of application, it follows that the second, third and fourth applicants do not satisfy cl.835.321.

42. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    Ministerial intervention request

43. At the hearing, the Tribunal discussed with the applicant about a referral for ministerial intervention.  In this regard, s.351 of the Act provides that the Minister can substitute for a decision of the Tribunal a decision that is more favourable to a person if he thinks it is in the public interest to do so. The Tribunal specifically notes that cases having one or more unique or exceptional circumstances may be referred to the minister for possible consideration of the personal use of his intervention powers.

44. During the scheduled hearing, the second applicant described his relationship with his family back in Russia as terrible. It was so toxic that the second applicant did not attend the burial for his father (who was an abusive alcoholic) He even formally changed his family or surname name from [Previous surname 2] to [Current surname]. When the second applicant informed his siblings that he intended to marry a Russian of Jewish origin, his family member threw antisemitic insults towards him and his wife. They warned the second applicant he was to be disowned by the family for marrying a Jewess. He described his family as very chauvinistic and nationalistic. The second applicant obviously chose building a married life with the first applicant over his biological siblings. The applicants have since travelled to Australia where they share a family life with [Ms F], the first applicant’s mother, and [Mr A], the first applicant’s only sibling.

45. The applicants and the witness, [Mr A], provided oral evidence that the first applicant’s mother – an Australian citizen, was a proud person but suffers from deliberating depressive mental health symptoms and relies on welfare. She did not attend the hearing due to anxiety and stress. They argued that should the family be separated this would cause a high level of distress on the first applicant’s mother.

46. The Tribunal further received oral evidence in regard to the first applicant’s brother, [Mr A]. It was outlined that his father passed away when he was two; that his mother and himself travelled to Australia when he was [Age] and that since the applicants have arrived in Australia has received more familial support to complete his education and develop a career and that they have shared the caring responsibilities for his mother.

47. At the end of the scheduled hearing, the applicants undertook to provide material supportive for the Tribunal to consider a referral for Ministerial Intervention.

48. The applicant submitted an extensive number of character letters and other evidence of the applicant’s contributions to Australian society.

    ·     A copy of an Australian passport belonging to [Ms F], the first applicant mother, indicating she was born in Moscow on [Date 7].

    ·     A medical certificate from a general practitioner indicating that [Mr A] suffers depression and anxieties and that her symptoms have deteriorated over the last two years.

    ·     A character letter from [Organisation 1]’s owner, [Ms G], dated 20 December 2021, in support of this application. It indicates the second applicant contributes on a voluntary basis to [the organisation].

    ·      A character letter from CEO/Founder of [Organisation 2], [Ms H], indicating voluntary contributions to [the organisation].

    ·     A letter from a [manager] from [Organisation 3], [Ms I], dated 24 November 2021 indicating the second applicant makes voluntary contributions to [the organisation].

    ·     A character letter from the director of [Business], [Mr J], in favour of the applicant’s visa application. It is dated 23 November 2021.

    ·     An email from [Ms K], an [Occupation], in support of the applicants’ visa application. It is dated 1 December 2021.

    ·     An email from [Ms L], an owner of [a Venue] in [Suburb 1], indicating a willingness to support [a Function for the second applicant]. It is dated 25 November 2021.

    ·     A character letter from [Mr M], from [Organisation 4]. It indicates the second applicant has voluntarily contributed to [the Organisation’s work].

    ·     An email dated 25 November 2021 from [Mr N] from [Organisation 5] indicated that the second applicant has been taking steps to convert to Judaism.

    ·     A letter from [Mr O], a professional [Sport] coach, dated 28 November 2021. The letter attests to the second applicant’s capacity for [Sport] for over 40s.

    ·     List of links outlining the applicant’s professional participation in Russian [Productions].

    ·     Evidence of the third and fourth applicant’s participation in Australian school and sporting activities.

    ·     A supportive letter in favour of the applicants’ visa application from the [Suburb 2] Primary school. It is dated 17 December 2021.

49. Currently, neither the first applicant nor the second applicants have work rights to participate in remunerative employment. This has added financial and emotional stress to this Australian family. Despite this, the applicants have demonstrated that they are already well integrated in the Jewish Australian community in Melbourne. The Tribunal estimably notes the conscientious steps the second applicant is taking to embrace Judaism with the support of this community, as well as his family. Should the applicants obtain a clearer pathway towards regularising their migration status, the Tribunal is confident they will make positive and constructive contributions to this country.

50. The applicants have demonstrably strong bonds with [Ms F] and [Mr A], who are Australian citizens. The Tribunal accepts the distress upon these Australian citizens to be high considering to [Ms F]’s age and mental health burden. The foreseeable harm would be permanent and considerable, should the applicants be removed from Australia resulting in separation from their Australian family unit.

51. Based on the available evidence about the applicants’ circumstances and their closeness of an Australian family unit, members of whom are Australian citizens, the Tribunal accepts that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicants’ Australian family unit; and compassionate circumstances regarding the health of [Ms F] that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to her.

52. For these reasons, the Tribunal will be making a referral to the minister for his urgent consideration under s.351 of the Act.

    DECISION

53. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Brendan Darcy
    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).