Beck (Migration)

[2021] AATA 972

Beck (Migration) [2021] AATA 972 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bryan Eric Beck

CASE NUMBER:  1828389

DIBP REFERENCE(S):  CLF2017/14260

MEMBER:Christine Kannis

DATE:2 March 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 02 March 2021 at 4:17pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – near relatives – half-brother living in South Africa – Ministerial Intervention request – impact on applicant’s family – value of applicant’s skills to his employer – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cls 835.212, 835.221; rr 1.03, 1.15

CASES

Claridge v MIBP [2013] FCCA 1953
Mercado v MIAC [2007] FMCA 1216
MIMIA v Hidalgo [2005] FCAFC 192
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
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 Immigration on 17 September 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 February 2017. 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212.

3. The visa was refused on the basis that cl.835.212 was not met by the applicant because the delegate was not satisfied that the applicant met the requirements of remaining relative as defined in r.1.15(1).

4. The applicant appeared before the Tribunal on 23 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brian Edward Beck, Mrs Yvette Beck, Ms Kailey Beck and Mr David Hanwith-Horden.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the remaining relative of his father, Mr Brian Edward Beck, who the applicant claims is his 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).

8. In this case Mr Brian Edward Beck is the applicant’s father and is an Australian citizen and therefore is an Australian relative for these purposes.

   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.

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

12. In the present case the Australian relative is the applicant’s father. As the Australian relative in this case is the parent 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. The applicant’s father first arrived in Australia on 3 November 2007. He became a permanent resident on 20 November 2008 and was granted citizenship on 21 February 2012. Based on the evidence provided to the Department and at hearing, the Tribunal was satisfied that the applicant’s father is usually resident in Australia.

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

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

16. 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.

17. ‘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.

18. In a Form 47OF lodged on 6 February 2017 the applicant recorded that his parents (including step-parents) were Brian Edward Beck and Yvette Maureen Beck and that they were both resident in Australia.  He also stated that his mother, Eretha Basson, was deceased. He recorded Kailey Beck as his sibling and indicated she was residing in Australia. In the Form 47OF the applicant recorded his other remaining relatives as a grandmother, an aunt and an uncle, all of who were residing in Australia and a grandmother residing in South Africa.

19. On 16 December 2017, the applicant advised the Department that after his parents divorced in 1992, his biological mother (Eretha Basson) remarried and had a son.

20. On 9 July 2018 the applicant provided a Form 54 in which he recorded that he had a brother living in North West South Africa. The delegate noted that Departmental systems confirmed that the applicant’s brother is not usually resident in Australia and is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

21. A ‘half’ relationship arises where two people are related by one parent only. For example, a half-brother and half-sister have one parent in common.

22. In Mercado v MIAC,[1] the Federal Magistrates Court considered whether the reference to ‘brother’ in the definition of ‘overseas near relative’ for the purposes of the definition of ‘remaining relative’ in reg 1.15 included or excluded a ‘half-brother’. The Tribunal relied on the Macquarie Dictionary definition of ‘brother’, which included reference to a ‘half-brother’, in construing the regulation. The Court noted that the Act and Regulations make no reference to the class of persons defined as ‘half-brother’, but accepted the Minister’s submission that there is no apparent policy reason why a half-brother would be excluded, particularly having regard to the inclusion of ‘step-brothers’. In Mercado v MIAC, Lloyd-Jones FM commented:

    The denial of the reunion of a blood relative, while permitting a reunion based on marriage which may be dissolved at any time, does not appear compatible with the overall intent of the legislation. In the circumstance, I am satisfied that in the absence of direct reference to the status of ‘half-brother’ in the Act or Regulations, the approach adopted by the Tribunal was correct.[2]

    [1] Mercado v MIAC [2007] FMCA 1216.

    [2] Mercado v MIAC [2007] FMCA 1216 at [33].

23. Relevantly, in Claridge v MIBP[3] the Court agreed with the reasoning set out in Mercardo and found that the term ‘brother’ included ‘half-brother’.[4] The Court noted that while the meaning to be ascribed to words may change from time to time, there is judicial authority of some antiquity supporting the reasoning adopted in Mercado.[5] The Court further observed that by inference the same reasoning would apply to the term ‘sister’.[6]

    [3] Claridge v MIBP [2013] FCCA 1953.

    [4] Claridge v MIBP [2013] FCCA 1953 at [31]–[36].

    [5] Claridge v MIBP [2013] FCCA 1953 at [35].

    [6] Claridge v MIBP [2013] FCCA 1953 at [9].

24. The applicant told the Tribunal that he does not know his half-brother. He said the last time he saw him was at their mother’s funeral and he does not know his current whereabouts. The Tribunal also notes, however, that the definition of remaining relative does not require or even allow consideration of subjective matters such as the quality of familial relationships. A living near relative must be taken into account for the purposes of assessing r.1.15.

25. Based on the information provided by the applicant in the Form 54 and at hearing, the Tribunal is satisfied that the applicant has a near relative other than those who are usually resident in Australia and are Australian citizens or permanent residents or eligible New Zealand citizens. 

26. The Tribunal is not satisfied there are no near relatives other than those permitted by the Regulations. For these reasons, based on all the information available, the Tribunal is satisfied that the applicant does not meet the definitive requirements for remaining relative in r.1.15(1)(c).

27. Therefore, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian relative at the time of application at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.

28. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    REFERRAL TO THE MINISTER

29. In a pre-hearing submission, the applicant’s representative requested the Tribunal to consider referring this case for Ministerial Intervention. In support of this request the following information was provided:

    ·The applicant is single, 35 years of age and a South African citizen.

    ·The applicant’s near relatives include his father, Brian Edward Beck, an Australian citizen, usually resident in Australia; his stepmother, Yvette Maureen Beck, an Australian citizen, usually resident in Australia his half-sister, Kailey Beck, an Australian citizen, usually resident in Australia; his half-brother, Luandre Basson, a South African citizen who is believed to be resident in the United States of America

    ·The applicant’s mother, Eretha Basson, is deceased. She died in 2013.

    ·The applicant’s mother and father separated when he was 6 months old.  His mother had custody and they lived with his maternal grandmother. When he was about 3 years old, his mother and grandmother’s relationship broke down. His mother left the home and he remained with his grandmother. After many years of trying to get the applicant to come live with him, his father finally managed to get the applicant to join him in Botswana for two years. The applicant was in his last couple of years of primary school and, as secondary school options were very limited for him in Botswana, he had to move back to his grandmother’s home to attend secondary school in South Africa.

    ·When the applicant was about 13 years old, he found out that his mother had another child, Luandre Basson.

    ·The applicant arrived in Australian in December 2016.

    ·The applicant has about seven years’ experience in drilling and boiler making but has no formal qualifications. He would have no support and poor job prospects in South Africa.

    ·The applicant has now resided in Australia for more than 4 years.

    ·He has obtained an Australian trade qualification – a Certificate III in Engineering Fabrication Trade.

    ·He is well thought after and respected by his employer, Easternwell Minerals, and he performs most of his work in remote, regional Western Australia.

    ·He is an honest, churchgoing, young man and has made close friendships in Australia.

    ·He is much loved by his Australian family, who will be devastated should he not be able to remain with them in Australia.

    ·At best, if the Minister intervenes, it is expected that a temporary visa (e.g. a substituted 600 visa) would be provided. This would give the applicant the opportunity to consider a visa application onshore such as the Temporary Skill Shortage visa. This is now a possibility as the applicant has an Australian trade qualification and should easily satisfy requirements. His employer will be grateful not to lose his services, especially with the difficulty of securing tradespersons during COVID.

    ·COVID is another reason why the Minister may consider allowing the applicant to remain in Australia. If there was no COVID and as the applicant is subject to s.48, he could depart Australia, submit a Temporary Skill Shortage visa and return to Australia relatively quickly. With COVID, this is simply not an option. Due to the current travel restrictions, it would be extremely hard for Easternwell Minerals to retain the applicant as an employee should he have to leave Australia.

30. At the time of providing the pre-hearing submission, the applicant’s representative also provided additional documents which included but were not limited to statutory declarations made by the applicant, his father (Mr Brian Edward Beck), his stepmother (Mrs Yvette Beck), his half-sister (Ms Kailey Beck) and his future brother-in-law (Mr David Hanwith-Horden). References from the applicant’s employer, his church and two friends were also provided.

31. In his statutory declaration the applicant said he has only ever seen his half-brother a half a dozen times in his life and he has never considered him as family. At hearing the applicant told the Tribunal that except for two years during his primary school years, he lived with his grandmother until he was 23 years old. He said prior to coming to Australia in 2016, he was living with an aunt in South Africa and working as a boiler maker.

32. The applicant told the Tribunal that in his twenties he was rebellious. He said he came to Australia because of his father. He said his family welcomed him with open arms and he feels wanted and accepted. The applicant said if he has to return to South Africa he will not be able to obtain employment because he is the wrong skin colour. He referred to the current non-white government. The applicant also said the COVID-19 infection rate is very high in South Africa. In response to the Tribunal asking about the current rate the applicant said he did not know the current number of cases and said his view was based on what he saw on the news. He told the Tribunal he loves Australia and loves being with his family.

33. In his statutory declaration the applicant’s father said he is very stressed and drained at the thought of the applicant returning to South Africa. At hearing Mr Brian Beck told the Tribunal that he is stressed about the possibility of the applicant having to return to South Africa. He became visibly distressed and said the applicant would have no support and there would be no-one to pick him up from the airport. He said the applicant would not be able to walk into a job because he would not have the same opportunities he would have had if he had stayed in South Africa. Mr Brian Beck said his brother’s child had returned to South Africa after living in China and had not been able to find employment for 18 months.

34. In her statutory declaration the applicant’s stepmother said she believes his father won’t cope mentally if the applicant has to return to South Africa, especially with the lack of job opportunities and high COVID death rates. At hearing Mrs Yvette Beck said there is no-one in South Africa to look after the applicant.

35. In her statutory declaration the applicant’s half-sister said when she was growing up she never got the chance to see the applicant often and over the last four years she has got to know him. She said if the applicant returns to South Africa she fears for the negative mental impact it would have on her family, especially her father. She is getting married in November 2022 and she would like the applicant to be there to celebrate this event. At hearing Ms Kailey Beck told the Tribunal that prior to the applicant coming to Australia her family felt disjointed. She said the applicant has now become committed to being part of the family and has grown into a responsible person.

36. In his statutory declaration Mr Hanwith-Horden said he had witnessed the close bond the applicant shares with his family. He said they are all worried about the possibility of the applicant having to leave Australia and said in South Africa he had no place to live, no prospect of work and a high possibility of getting COVID-19 because of the country’s poor health care system. At hearing Mr Hanwith-Horden told the Tribunal that if the applicant returns to South Africa and does not obtain employment, he will not have the funds to survive.

37. The references from friends and the church attest to the applicant’s good character.  The reference from the applicant’s employer (Easternwell) said he is a valued team member, that they consider him part of the Easternwell family and they have continual long-term contracts in place with an abundance of work for him.

38. At hearing the applicant’s representative submitted that if the applicant is required to depart Australia it will have a detrimental effect on his family and on his employer. He said if not for COVID-19, the applicant would be able to apply for a Skilled visa offshore and his employer would nominate him for the visa.

39. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s351, s417, and s501J) available in the Procedures Advice Manual 3 (the Minister’s Guidelines).

40. Among other things, the Minister’s Guidelines state that the Minister may consider exercising his or her discretion in cases that exhibit one or more ‘unique or exceptional circumstances’. The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. They include the following:

    (a)  Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

    (b)  Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

1. Essentially it is contended that if the applicant departs Australia and returns to South Africa, his family in Australia and in particular his father, would suffer mental distress. No medical evidence was provided to substantiate this contention. The Tribunal accepts that it is not the applicant’s or his family’s preferred outcome and separation would cause a degree of distress.  The Tribunal however notes that the applicant’s father came to Australia in 2007. The applicant did not join his father, stepmother and half-sister until he arrived on 12 December 2016. He lived in a different country to them for nearly a decade.

2. It was also contended that if the applicant returns to South Africa he would have poor employment prospects. No evidence was provided to substantiate this contention. It was further contended that if the applicant returns to South Africa he would have no-one to look after him. There was nothing to suggest the applicant requires any care. The Tribunal notes that he lived and worked in South Africa until he was 31 years old and that he left only four years ago.

3. Evidence was also given that the rate of COVID-19 in South Africa is high and the applicant would be at increased risk of contracting the virus if he returns there. The Tribunal notes that COVID-19 is adversely affecting almost every country in the world. The Tribunal is not satisfied the evidence indicates that the COVID-19 situation in South Africa would cause the applicant serious, ongoing and irreversible harm.

4. Submissions were also made that the applicant’s departure would have a detrimental effect on his employer. No evidence was provided to substantiate this contention and the Tribunal was not satisfied that this is a matter which falls under the Minister’s Guidelines.

5. Ministerial Intervention is exercised in rare cases and only where there are unique and/or exceptional circumstances and the Tribunal is not of the view, based on the applicant’s circumstances, that there are unique and/or exceptional circumstances in this case such that the Tribunal should refer this case. 

6. The Tribunal has considered the request that it refer this matter to the Minister however respectfully declines to do so. The Tribunal notes that it is open to the applicant make a request directly to the Minister. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

   Christine Kannis
   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).