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

1. 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).

2. 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.

3. 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. 

4. The consequence of Miss Rebecca Kate Bates being removed as a dependent applicant was that the applicant was unable to meet the requirements of reg 1.15(1)(c).  This was because the applicant was required to have no ‘Near relatives’, other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens.  As the applicant’s daughter was no longer a dependent and was a British citizen, the applicant did not meet the requirements of reg 1.15(1)(c), and subsequently did not meet the time of decision criteria for the grant of the visa.    

5. The applicant appeared before the Tribunal on 15 May 2023 to give evidence and present arguments.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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).

9. 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?

10. 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.

11. 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’.

12. 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)

13. 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. 

14. The Tribunal is satisfied that the sponsor Australian relative Ms Katrina Joanne Carroll is a sibling of the applicant. 

15. 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)

16. 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.

17. The Australian relative Ms Katrina Joanne Carroll migrated to Australia in 2000 on a Temporary Work (Skilled) subclass 457 visa. She attained permanent residency on 27 August 2004. Ms Carroll now has four boys aged between 13 and 17 years of age.  The applicant submits that the entire family now resides together in the Wollongong area.  The Tribunal is satisfied that the applicant’s sister, the Australian relative, is usually resident in Australia.        

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

    No near relatives: reg 1.15(1)(c)

19. 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.

20. ‘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.

21. The applicant nominated her living ‘near relatives’ for the purposes of reg. 1.15 as:

    ·her father, Mr Ian Stuart Bates, who arrived in Australia on 26 August 2010 and became an Australian Citizen on Australia Day, 26 January 2016;

    ·her mother, Mrs Judith Bates, who arrived in Australia on 26 August 2010 and became an Australian Citizen on Australia Day, 26 January 2016;

    ·her sister and sponsor, Ms Katrina Joanne Carroll, who became an Australian permanent resident on 27 August 2004;

    ·her daughter and secondary applicant Ms Rebecca Kate Bates.

22. The applicant divorced her husband Mr Richard John Alderson on 8 July 1994 in the Newcastle County Court of Great Britain. The applicant renounced and relinquished her married name on 4 April 1996.  A copy of the relevant documentation has been provided to the Tribunal. The Tribunal accepts the evidence that the applicant has not remarried or entered a de facto relationship since this time. The applicant claims to have resided with her parents since 1993 after her marriage broke down in traumatic circumstances. She travelled with them to Australia in 2010 and has worked and contributed to Australian society in the childcare sector since this time. The Tribunal accepts the applicant’s testimony and accepts the applicant was not married or in a de facto relationship either at the time of application or the time of decision.  

23. The Tribunal agrees with the delegate that the decision of the former secondary applicant, Ms Rebecca Kate Bates, to declare herself no longer dependent on the applicant and lodge her own Partner visa application, at the time, essentially precluded the applicant from being able to meet the time of decision criteria for the grant of the visa. 

24. Given the former secondary applicant withdrew herself from the application, was over 18 years of age, and on her own evidence was no longer dependent upon the applicant, the applicant was no longer able to meet reg. 1.15(1)(c).

25. This regulation required that the applicant have no near relatives, other than those that were usually resident in Australia, and were Australian citizens, Australian permanent residents, or eligible New Zealand citizens.  Whilst the applicant’s daughter was certainly resident in Australia, she remained a British citizen.  The applicant, therefore, from 26 October 2020 when the Department withdrew the applicant’s daughter from the application, had a near relative who was not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen and was not a dependent child of the applicant. 

26. The applicant has provided substantial evidence that her daughter Ms Rebecca Kate Bates lodged a Partner visa application on 1 April 2020 on the basis of her relationship with an Australian citizen.  Ms Rebecca Kate Bates’ Partner (subclass 820) visa was granted on 13 July 2021.  On 30 March 2022 Ms Rebecca Kate Bates lodged her permanent stage Partner (subclass 801) visa application. At the time of the Tribunal’s hearing, the applicant was still awaiting confirmation of the grant of Ms Rebecca Kate Bates’ permanent stage visa. The Tribunal noted the evidence that Ms Rebecca Kate Bates by now had a child with her Australian citizen partner and was residing in the same area with her parents and the applicant. 

27. Post-hearing on 5 June 2023, the applicant informed the Tribunal that Ms Rebecca Kate Bates had in fact now been granted Australian permanent residency.  The applicant provided a copy of Ms Rebecca Kate Bates’ grant of a Partner (subclass 801) permanent stage visa.  Ms Rebecca Kate Bates subsequently attained Australian permanent residency on 2 June 2023. 

28. The attainment of Australian permanent residency by Ms Rebecca Kate Bates on 2 June 2023, already resident in Australia since 2010, means that at the time of the Tribunal’s decision, the applicant has no ‘near relatives’ (as defined in reg. 1.15(2) of the Regulations) except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

29. On the evidence, the Tribunal finds that the applicant does not have any other near relatives other than her father Mr Ian Stuart Bates, her mother Mrs Judith Bates, her sister and sponsor Ms Katrina Joanne Carroll and her daughter Ms Rebecca Kate Bates who are all usually resident in Australia and are Australian citizens or permanent residents.  All have resided in Australia for many years and have been active and contributing members of their community. The Tribunal is satisfied from the evidence that the applicant is neither married nor in a de facto relationship either at the time of decision or at the time of application.

30. The Tribunal is satisfied that the applicant also meets the time of application criteria. At the time of application over a dozen years ago Ms Rebecca Kates Bates had not turned 18 years and was wholly or substantially in the daily care and control of the applicant.  She subsequently was not a ‘near relative’ of the applicant at the time of application as per reg 1.15(2)(b). The Tribunal notes that the applicant meeting the time of application criteria was not a matter in dispute. 

31. For these reasons, the Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is met.

    Adopted child: reg 1.15(1)(d)

32. 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.

33. 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 application and the time of decision for the purposes of cl 835.212 and cl 835.221.

34. 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.

    Processing the visa

35. The Tribunal recognises the applicant’s application was lodged in October 2010. The Tribunal notes the Department states that as of 30 April 2023, it has released Remaining Relative visa applications with a queue date of up to 31 July 2012: >

    The Tribunal would respectfully encourage the delegate, in the circumstances of this case, to consider any remaining aspects of this application for the grant of the visa promptly and as a priority.

36. 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

37. 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 Owen
    Deputy President

    
    

    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).