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

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).
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.
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).
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.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 Beck (Migration)

Details

AGLC: Beck (Migration) [2021] AATA 972
Case: [2021] AATA 972
Decision Date: 2 March 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), made by an applicant who claimed to be the remaining relative of his Australian father. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for being a "remaining relative" of an "Australian relative" as defined by the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant's father, an Australian citizen, was "usually resident in Australia" and if the applicant, along with his spouse, had no "near relatives" other than those usually resident in Australia and who were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal applied the definitions of "Australian relative" and "remaining relative" from the Migration Regulations. It found that the applicant's father, being an Australian citizen, qualified as an Australian relative. The Tribunal was satisfied, based on the evidence, that the applicant's father was usually resident in Australia, applying the principles from cases such as *Scargill v MIMIA* which consider both physical residency and intention. The Tribunal also considered the definition of "near relative" and the requirement that the applicant have no near relatives outside of Australia who do not meet the specified criteria. The Tribunal respectfully declined to refer the matter to the Minister for Ministerial Intervention, noting that the applicant could make such a request directly. The Tribunal affirmed the decision not to grant the visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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? 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.The requirement to be a parent or sibling: r.1.15(1)(a) 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) 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 KannisMemberATTACHMENT - 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).