Abrams (Migration)

[2021] AATA 4830

Abrams (Migration) [2021] AATA 4830 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charles Abrams

CASE NUMBER:  1834613

HOME AFFAIRS REFERENCE(S):          CLF2014/10721

MEMBER:David Crawshay

DATE:15 December 2021

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 criterion for a Subclass 835 (Remaining Relative) visa:

·cl.835.221 of Schedule 2 to the Regulations.

Statement made on 15 December 2021 at 2:15pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – details of partner’s family members not provided to department when requested – relationship ceased – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, 1.05, 1.15(1)(c), Schedule 2, cls 835.212, 835.221

CASES
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v FCT (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116

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 5 November 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 January 2014. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.221.

3. The delegate refused to grant the visa on the basis that cl.835.221 was not met because the delegate was not satisfied that the applicant was a remaining relative of the sponsor. The applicant had given details of a relationship, but did not give particulars of the family members of his partner despite being requested to do so by the Department.

4. The applicant appeared before the Tribunal on 15 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, his father, and from Ms Katrina Jane Enos, his step-mother.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of sponsor, who the 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).

7. In this case the sponsor is an Australian citizen and therefore is capable of being an Australian relative for these purposes.

8. The Tribunal accepts based on a letter of 15 October 2014 titled “Queue date allocation for an Other Family (Residence) (class BU) Remaining Relative (subclass 835) visa” that the applicant was assessed as meeting the “core criteria” for the visa at that time. It accepts that he was found to be a remaining relative at the time of application. The issue in this matter is whether the applicant is the remaining relative of the sponsor, as the Australian relative, at the time of this decision.

   Is the applicant a remaining relative of an Australian relative?

9. 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.

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 applicant and is “usually resident in Australia”.

11. 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 which are not relevant here.

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

12. The applicant submitted evidence in the form of a birth certificate showing that the sponsor is his biological father. As the Australian relative in this case is the father of the applicant, r.1.15(1)(a) is met.

    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. Movement records confirm that the sponsor has been in Australia for the vast majority of time since the time of application. Based on this, the Tribunal accepts that he is usually resident in Australia. It is satisfied that r.1.15(1)(b) is met.

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

15. 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.

16. “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.

17. The issue for the delegate was whether the applicant had any remaining relatives by his claimed de facto partner, Ms Jaimie Davidson. On 24 May 2017, the applicant requested information from the Department about being able to include his “girlfriend” on his bridging visa “as we have been together for quite some time, living together as well and her visa is due up in October”. The Department responded on 25 May 2017 by advising him to complete a Form 1436 and pay the additional visa application fee. No response to this request was forthcoming.

18. On 25  June 2018, the Department sent a letter to the applicant requesting a statutory declaration from him regarding his relationship status, along with a Form 54 from him and from his partner. On 14 August 2018, and in response to an unrelated enquiry from the applicant, the Department reminded him that he had not responded to the Department’s request for information and gave him until 25 August 2018 to do so. The applicant replied by email of the same date that he was “no longer in this relationship thats [sic] why i didn’t fill an [sic] send this form in”. On 15 August 2018, the Department responded in the following relevant terms:

    I am sure you can appreciate that as Ms Jamie [sic – Jaimie] Davidson attempted to lodge an application to be added to your Remaining Relative visa as your partner in May 2018, the Department needs to clarify what you [sic] relationship status is.

    The statutory declaration regarding your relationship status and a new Form 54 is still required as your ongoing application (and your eligibility to remain in the queue of Other Family visa applications) is under review.

    If you claim that you are no longer in a relationship with Ms Davidson, you are encouraged to clarify in your statutory declaration when you commenced a relationship with her and when this relationship ended.

19. No response to this email was forthcoming and no further information was given.

20. At hearing, the Tribunal discussed with the applicant his relationship with Ms Davidson. He said that they began seeing each other in September 2016 when she was in Byron Bay and he in Sydney. He said that when she moved to Sydney a little bit later she moved straight into his apartment in Randwick. The applicant said that he and Ms Davidson split up in September 2017 but then got back together again. He said that she moved into his apartment and then moved with him into another apartment in Zetland. He said that she went back to the UK to see family in May 2018 (although it was put to him that she departed in February 2018).

21. In terms of the quality of the relationship, the applicant said that he and Ms Davidson were arguing all the time. He said that they did not know each other well enough when they first moved in together. He said that when Ms Davidson was over in the UK and he in Australia during 2018, they “did not know where they stood”. He said that when he returned to see her in September and October 2018, it was not the same. He said that she was living with her family in Debden in Essex and he with the family of a friend in Woodford Green, also in Essex. He said that they saw each other a bit and that she would occasionally stay over at the place where he was staying.

22. The applicant characterised the relationship as “unhealthy” at that point. He said that he and Ms Davidson loved each other so they persevered. He said that when he returned to Australia in November 2018, they still talked but were not in a relationship. The Tribunal at this point put to the applicant that the reason he went back to the UK at the start of December was for Ms Davidson. He said that that might have had something to do with his decision. He said that he did not have a job at that stage or a place to stay.

23. The applicant characterised his interactions with Ms Davidson when he arrived back in the UK in early December as being “very difficult” with arguments. The Tribunal suggested to him that he and Ms Davidson may have felt the burden off their shoulders now that the visa was “out of the picture”. He replied that the relationship had a lot more flaws than that and that there were trust issues.

24. The applicant was asked if he had been in a relationship with anyone else since. He replied that he had been in a relationship around seven or eight months ago with a woman called “Julia Dennis” that he met through friends. He said that the relationship lasted for about one or two months. He said that the relationship was “really casual” and they would see each other at their houses. He said that he did not characterise the relationship as being a “boyfriend/girlfriend” relationship. He said that he had not seen her in ages. He said that he did not go out a lot and worked on weekends in his role at MG.

25. The Tribunal then interviewed the sponsor and asked him when he considered the relationship between the applicant and Ms Davidson to have ended. He replied that at the end of 2017 and start of 2018 the applicant would say that they were arguing a lot. He said that the whole of 2018 was a “slope downwards” to the end of the relationship. When it was put to him that the applicant’s trip back to the UK in September and October 2018 was a chance to rekindle the relationship, he agreed that it was a chance to save their relationship. He said that the applicant and Ms Davidson met a couple of times during that trip. The sponsor said that he then found out from the applicant at the end of that trip that the relationship had finished.

26. The sponsor and Ms Katrina Enos were asked whether the applicant had been in any relationships since then. They replied that there may have been casual relationships.

27. The Tribunal has considered the above evidence, along with documentary evidence on the Department and Tribunal files. It accepts based on the applicant’s testimony at hearing that he was in a relationship with Ms Davidson that began in around September 2016. It accepts that this relationship involved Ms Davidson moving in with the applicant to his apartment in Randwick. It finds the applicant’s evidence to have been vague as to dates at times. He had to correct himself about when he and Ms Davidson first split up – firstly stating that it was in October 2017 and then stating that it was in September 2017 and that they moved back in together in October 2017. He also stated that Ms Davidson departed Australia in May 2018 even though movement records showed her leaving in February 2018. It was revealed that the applicant was reading from a sheet, and when confronted with this he maintained that he was reading from notes he had written up. Although the examples cited above are relatively minor, the Tribunal takes a dim view of the applicant relying on a written document as a aide-memoire as it calls into question the spontaneity of the applicant’s testimony at hearing.

28. Notwithstanding these concerns, the Tribunal must remember that the issue is whether the applicant is currently in a married or de facto relationship. In this regard, it notes that a significant period of time has elapsed since the Department’s decision – over three years. Although the Tribunal has concerns about the applicant’s evidence, it notes that it is broadly corroborated by the evidence given by his father, the sponsor. The Tribunal accepts that the sponsor would be in a position to be able to assess the health or otherwise of the applicant’s relationship with Ms Davidson, being in regular contact with him via weekly telephone calls. In this way, it puts substantial weight on the sponsor’s evidence as to the deterioration of the applicant’s relationship with Ms Davidson. Based on this evidence, it finds that it ended at the end of 2018 and is not ongoing at the time of this decision.

29. The Tribunal has lastly considered if the applicant is in any other relationship at the time of decision. It notes the applicant’s claim made at hearing about having been in a relationship (albeit one he characterised as not being serious) around seven or eight months ago with a women called Julia Dennis. In the absence of any evidence to the contrary, the Tribunal accepts that this relationship, to the extent that it constituted a de facto relationship, is not ongoing at the time of this decision.

30. As the applicant is not in a spousal or de facto relationship at the time of this decision, and there is no evidence that there are any near relatives other than those permitted by the Regulations, it finds that r.1.15(1)(c) is met.

31. 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 decision for the purposes of cl.835.221.

32. 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

33. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 835 (Remaining Relative) visa:

    ·cl.835.221 of Schedule 2 to the Regulations.

    David Crawshay
    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).