Becker (Migration)

[2021] AATA 4192

Becker (Migration) [2021] AATA 4192 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Melanie Anne Becker

CASE NUMBER:  1902463

HOME AFFAIRS REFERENCE(S):          CLF2018/29299

MEMBER:Mila Foster

DATE:25 October 2021

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 of Schedule 2 to the Regulations, and

·cl 835.221 of Schedule 2 to the Regulations.

Statement made on 25 October 2021 at 8:21am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – family composition – all near relatives, as defined, living in Australia and Australian citizens – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2019 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 applied for the visa on 15 March 2018.[1] 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 835.212.

   [1] The applicant applied for the visa as Melanie Anne Fanfoni. She reverted to using her maiden name, Melanie Anne Becker, on review.

3. The delegate refused to grant the visa on the basis that cl 835.212 was not met because sufficient evidence had not been provided to demonstrate that the applicant met the definition of a remaining relative in reg 1.15 of the Regulations.

4. The applicant appeared before the Tribunal on 19 October 2021 to give evidence and present arguments.[2] The Tribunal also received oral evidence from Wendy Le Grange, the applicant’s sponsor for the visa.

   [2] Due to the COVID-19 pandemic the hearing was conducted via video.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. This visa application was made on the basis that the applicant is the remaining relative of Ms Le Grange, who the applicant claims is her Australian relative.

8. The evidence before the Tribunal includes the Department of Home Affairs (Department) file relating to the visa application,[3] Department movement and ISCE records, documents the applicant submitted on review, and the oral evidence given at the hearing. The documents submitted on review include a statutory declaration made by the applicant on 5 February 2019, a ‘Personal particulars for assessment including character assessment’ form or Form 80 completed by the applicant, a ‘Family composition’ form or Form 54 in relation to her mother’s family, a Form 54 relating to her father’s family and a Form 54 relating to her stepfather’s family.

   [3] File number CLF2018/29299.

   Background and summary of claims

9. The applicant claims she was born in South Africa and is a citizen of that country. She is single and does not have children from any relationship. She had been married; the marriage ended by divorce in 2006. Her parents and two siblings resided in Australia after migrating here about three decades ago and all acquired Australian citizenship. The applicant’s parents divorced in Australia in 1995 and her mother remarried. Her mother and stepfather did not have children together. Her stepfather has three adult children from a previous marriage. Her stepfather and his children are Australian citizens and reside in Australia.

   Is the applicant a remaining relative of an Australian relative?

10. 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 defined in reg 1.03 as a ‘close relative’ or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents). ‘Close relative’ is defined in reg 1.03 as a partner, child, parent, brother or sister.

11. ‘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.

    Is the sponsor an Australian relative?

12. The Tribunal has before it the applicant’s birth certificate, Ms Le Grange’s birth certificate, and a Change of Name Certificate issued by the New South Wales (NSW) Birth Deaths and Marriages Registry in relation to name changes made by Ms Le Grange. On the basis of those documents the Tribunal finds that the applicant and Ms Le Grange are biological sisters. The Tribunal also has before it a citizenship certificate which states that Ms Le Grange acquired Australian citizenship on 26 March 2009. The Tribunal therefore finds that at the time of application and time of decision, Ms Le Grange is an Australian relative of the applicant.

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

13. 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)

14. 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.

15. The Department’s movement records indicate that Ms Le Grange has resided in Australia since 1992 when she was granted a permanent visa. The Tribunal thus finds that at the time of application and time of decision, the Australian relative is usually resident in Australia. Hence, reg 1.15(1)(b) is met.

    No near relatives: reg 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 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.

18. The applicant has provided a copy of her divorce certificate which states that she and her former husband, Riccardo Gabriele Fanfoni, were divorced in 2006 and did not have children. There is no evidence before the Tribunal to suggest that the applicant currently has a partner or children including any stepchildren or adopted children. On the evidence before it the Tribunal finds that at the time of application and time of decision, the applicant did not have a partner or children.

19. On the basis of the information, documents and oral evidence before the Tribunal and in the absence of evidence to the contrary the Tribunal finds the applicant’s near relatives are as follows.

    ·The applicant’s father, Boris Christian Becker.[4] He was born in South Africa and died in Australia in 2020.[5] He acquired Australian citizenship on a date not known.[6] He had resided in Australia since migrating here on a parent visa in 1993.[7]

    ·The applicant’s mother, Gwendoline Heaton.[8] She has previously been known as Gwendoline Becker and Gwendoline Le Grange.[9] She was born in South Africa.[10] She migrated to Australia on a parent visa in 1993.[11] She became an Australian citizen in 1996.[12] She was married to the applicant’s father; they divorced in Australia in 1995.[13] She married Irwin (Joe) Heaton in Australia in 1999.[14] She and Mr Heaton did not have children.[15] She has resided in Australia since migrating here.[16]

    ·The applicant’s sister, Wendy Le Grange.[17] She was born in South Africa.[18] As already found, she migrated to Australia in 1992, became an Australian citizen in 2009 and has resided in Australia since migrating here.

    ·The applicant’s brother, Brian Wilhelm Becker.[19] He was born in South Africa, migrated to Australia and later became an Australian citizen in 1988.[20] He currently resides in Australia and has resided in Australia since at least 2006.[21]

    ·The applicant’s stepfather, Irwin Heaton.[22] He was born in Australia[23] and is an Australian citizen by birth.[24] He has resided in Australia since birth.[25]

    ·The applicant’s stepsiblings, Peter Joseph Heaton, Jennifer Louise Heaton and Jodie Ann Heaton. The applicant’s stepsiblings are Mr Heaton’s adult children from a previous marriage.[26] They are all Australian citizens and residents.[27]

    [4] Applicant’s birth certificate.

    [5] Death certificate provided on review.

    [6] Applicant’s statutory declaration and Form 80.

    [7] Form 80, Form 54 (Boris Christian Becker), ISCE record and oral evidence.

    [8] Applicant’s birth certificate.

    [9] Form 80.

    [10] Birth certificate provided on review.

    [11] Movement record and oral evidence.

    [12] Form 80 and movement record.

    [13] Decree Nisi of Dissolution of Marriage provided on review.

    [14] Marriage certificate provided on review.

    [15] Applicant’s statutory declaration.

    [16] Form 80, Form 54 (Gwendoline Heaton), oral evidence, and movement record.

    [17] Also known as Amelia Wendy Becker, Amelia Wendy Mostert and Amelia Wendy Barber: Change of Name Certificate. 

    [18] Birth certificate.

    [19] Form 80, applicant’s statutory declaration, Form 54 (Boris Christian Becker), Form 54 (Gwendoline Heaton), and oral evidence.

    [20] Form 80, oral evidence and movement record.

    [21] Form 80 and movement record.

    [22] Marriage certificate provided on review.

    [23] Birth certificate provided on review.

    [24] Form 80.

    [25] Form 54 (Irwin Heaton), NSW driver licence, oral evidence, and no movement record.

    [26] Applicant’s statutory declaration and Form 54 (Irwin Heaton).

    [27] Applicant’s statutory declaration, Form 54 (Irwin Heaton), movement records.

20. The Tribunal is satisfied on the evidence before it that the applicant had no other near relatives at the time of application or time of decision. The Tribunal is thus 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)

21. The applicant is not a child hence reg 1.15(1)(d) does not apply.

    Conclusion on cl 835.212 and cl 835.221

22. In light of the above findings, 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. Hence, 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

23. 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 of Schedule 2 to the Regulations,

    · cl 835.221 of Schedule 2 to the Regulations.

    Mila Foster
    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).