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

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).
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.
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.
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.
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.
Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 21 November 2021 to give…

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 2001061 (Migration)

Details

AGLC: 2001061 (Migration) [2022] AATA 962
Case: [2022] AATA 962
Decision Date: 9 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for Other Family (Residence) (Class BU) visas, Subclass 835 (Remaining Relative), made by Russian and Israeli citizens. The applicants claimed to be the remaining relatives of an Australian citizen, who they identified as their brother. The applicants had arrived in Australia in December 2018 on visitor visas and lodged their visa application in November 2019.

The primary legal issue before the Tribunal was whether the applicants met the definition of a "remaining relative" as prescribed by regulation 1.15 of the Migration Regulations 1994. This required the Tribunal to determine if the Australian citizen was a parent or sibling of the applicant, if that Australian relative was usually resident in Australia, and crucially, whether the applicants and their spouse or de facto partner had no near relatives other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal affirmed the decision not to grant the visas. The reasoning focused on the definition of "remaining relative" under regulation 1.15. While the applicants established that their claimed Australian relative was their brother and was usually resident in Australia, the Tribunal found that the applicants had not satisfied the condition that they, and their spouse or de facto partner, had no near relatives other than those who were usually resident in Australia and held Australian citizenship or permanent residency. The Tribunal noted that the second applicant's siblings were estranged and their whereabouts were unknown, and that the applicants had not provided sufficient evidence to demonstrate they had no other near relatives who did not meet the criteria for being usually resident in Australia. The Tribunal concluded that the applicants did not satisfy the requirements of regulation 1.15.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEBackground Copies of the applicants and the witness’ birth certificates (with certified translations) are on the Departmental file ([Number]). [The first applicant] was born [Date 1] in Moscow in the Russian Federation. Her name prior to marriage was [Previous name 1]. 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]. 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]. 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. 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. 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. 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? 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. 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’. 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)

Ratio Decidendi

Legal Principle Established

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