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

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).
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.
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.
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.
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 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).
In this case the sponsor is an Australian citizen and therefore is capable of being an Australian relative…

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 Abrams (Migration)

Details

AGLC: Abrams (Migration) [2021] AATA 4830
Case: [2021] AATA 4830
Decision Date: 15 December 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought to establish that they were a remaining relative of an Australian relative. The core of the dispute revolved around whether the applicant continued to meet the criteria for being a remaining relative at the time of the decision, particularly in light of a relationship ceasing and the department's request for details of the partner's family members not being fully provided. The decision was made by David Crawshay.

The legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an "Australian relative" at the time of the application and whether this status continued to be met at the time of the decision. This required the Tribunal to consider the definitions of "Australian relative" and "remaining relative" as set out in the Migration Regulations 1994, including the requirements that the Australian relative be a parent or sibling, usually resident in Australia, and that the applicant and their partner have no near relatives other than those usually resident in Australia and holding Australian citizenship or permanent residency.

The Tribunal accepted that the applicant had met the core criteria for the visa at the time of application, including being a remaining relative of their Australian citizen father. The Tribunal applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* to interpret the meaning of "usually resident in Australia," which involves considering both physical residency and intention. While the Tribunal found that the applicant met the criterion under cl.835.221 of Schedule 2 to the Regulations, it noted that other criteria for the visa still needed to be considered.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets the criterion specified in cl.835.221 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 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). In this case the sponsor is an Australian citizen and therefore is capable of being an Australian relative for these purposes. 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? 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. 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 which are not relevant here.The requirement to be a parent or sibling: r.1.15(1)(a) 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) 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 835 visa.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.David CrawshayMemberATTACHMENT - 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 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 CrawshayMemberATTACHMENT - 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).