Bates (Migration) - [2023] AATA 2028

Bates (Migration) [2023] AATA 2028 (19 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Fiona Mary Bates
REPRESENTATIVE:  Ms Rachel Magill (MARN: 0601736)
CASE NUMBER:  2102616
HOME AFFAIRS REFERENCE(S):          CLF2010/142326
MEMBER:Deputy President Justin Owen
DATE:19 June 2023
PLACE OF DECISION:  Sydney
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 criteria for a Subclass 835 (Remaining Relative) visa:
·cl 835.212 and cl 835.221 of Schedule 2 to the Regulations.

Statement made on 19 June 2023 at 1:08pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – – no near relatives – applicant’s daughter withdrew from visa application – no longer a dependent child – daughter now granted Australian permanent residency – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15; Schedule 2, cls 835.212, 835.221
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
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 22 February 2021 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 is a 55-year-old female British national. The applicant applied for the visa on 19 October 2010. 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 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. At the time of application, the applicant included her daughter, Miss Rebecca Kate Bates, as a dependent applicant. Miss Bates was 17 years of age at the time.
The delegate refused to grant the visa on the basis that cl 835.221 was not met because the applicant at the time of decision was not the remaining relative of her sister and sponsor Ms Katrina Joanne Carroll. The delegate noted the applicant’s daughter and dependent applicant, Miss Rebecca Kate Bates, had advised the Department on 24 October 2020 that she was no longer a dependant of the applicant. Miss Rebecca Kate Bates advised the Department, now more than a decade after the application was lodged, that she was now in gainful employment and able to support herself; was in a de facto relationship; and had since made an application for a Partner visa. On 26 October 2020, the Department removed Miss Rebecca Kate Bates as a dependent applicant.
The consequence of Miss Rebecca Kate…

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 Bates (Migration)

Details

AGLC: Bates (Migration) [2023] AATA 2028
Case: [2023] AATA 2028
Decision Date: 19 June 2023

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 migrate to Australia based on being the remaining relative of Ms Katrina Joanne Carroll, who was an Australian citizen. The dispute arose from the applicant's eligibility for the visa, with the Tribunal ultimately concluding that the matter should be remitted for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the criteria to be considered a 'remaining relative' of an 'Australian relative' as defined by the Migration Regulations 1994. This involved determining if the applicant's sister, Ms Carroll, was an 'Australian relative' and if the applicant, along with her spouse or de facto partner, had no 'near relatives' other than those usually resident in Australia and holding Australian citizenship or permanent residency. The Tribunal also considered the definition of 'usually resident' in relation to Ms Carroll.

The Tribunal applied the definitions of 'Australian relative' and 'remaining relative' from the Migration Regulations. It was satisfied that Ms Carroll, as the applicant's sister and an Australian citizen, met the criteria of being an 'Australian relative' and was usually resident in Australia, drawing on established case law regarding the dual factors of physical residency and intention. The Tribunal noted that the applicant's daughter had withdrawn from a visa application and was no longer a dependent child, but had since been granted Australian permanent residency. While not directly germane to the visa criteria, the Tribunal also drew attention to the applicant's significant role in caring for her parents and her work in the childcare and disability support sectors.

The Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria for a Subclass 835 (Remaining Relative) visa, specifically referencing clauses 835.212 and 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 Ms Katrina Joanne Carroll who the applicant claims is her 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: 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). In this case, Ms Katrina Joanne Carroll is the applicant’s sister and an Australian citizen and therefore is an Australian relative for these purposes.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 the time of application, and continue to be a ‘remaining relative’ at the 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) The applicant has provided copies of the sponsor’s and Australian resident’s British birth certificate that lists her parents as Mr Stuart and Mrs Judith Bates. The applicant has also submitted her own British birth certificate that lists Mr Stuart and Mrs Judith Bates as her own parents. The Tribunal is satisfied that the sponsor Australian relative Ms Katrina Joanne Carroll is a sibling of the applicant. As the Australian relative in this case is the sister of the applicant, reg 1.15(1)(a) is met. Whether the Australian relative is usually resident in Australia: reg 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 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.

Decision

Reasons for decision

Beyond the issue of the queue release dates, the Tribunal would also note the evidence before it pertaining to the circumstances of the Bates family. The applicant has resided with her Australian citizen parents since 1993 and played a key role in providing daily care to her parents, particularly her father who has advanced prostrate cancer, and her mother who has been diagnosed with a number of neurological challenges. The applicant is also a qualified worker in the critical education and childcare sector and has spent many years as a Childcare Centre manager. Through an unfortunate conflation of issues, the applicant’s business sponsorship in the childcare sector fell through due to circumstances outside of her own control. Since last year, she has now worked as a disability support worker in the Southern Highlands of NSW, an area that faces a significant shortage of experienced workers. Whilst these are not criteria obviously germane to the grant of the Remaining Relative visa, the Tribunal nevertheless brings this evidence to the attention of the delegate as it moves forward to process the applicant’s visa application. 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 criteria for a Subclass 835 (Remaining Relative) visa:·cl 835.212 and cl.835.221 of Schedule 2 to the Regulations.Justin OwenDeputy PresidentATTACHMENT - 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 criteria for a Subclass 835 (Remaining Relative) visa:·cl 835.212 and cl.835.221 of Schedule 2 to the Regulations.Justin OwenDeputy PresidentATTACHMENT - 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).