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

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).
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.
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.
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.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 Becker (Migration)

Details

AGLC: Becker (Migration) [2021] AATA 4192
Case: [2021] AATA 4192
Decision Date: 25 October 2021

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, who was born in South Africa and held South African citizenship, sought to migrate to Australia. The dispute centred on whether the applicant met the criteria of being a "remaining relative" of an "Australian relative" as defined by the Migration Regulations 1994. The decision was made by Mila Foster, a member of the Tribunal.

The core legal issues before the Tribunal were to determine if the applicant qualified as a "remaining relative" of an "Australian relative" at both the time of application and the time of the decision. This required an assessment of whether the applicant had an eligible relative in Australia who was an Australian citizen, permanent resident, or eligible New Zealand citizen, and whether the applicant, along with their spouse or de facto partner, had no "near relatives" outside of Australia, or any near relatives in Australia who were not Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal found that the applicant and Ms Le Grange were biological sisters, and that Ms Le Grange was an Australian citizen. Therefore, Ms Le Grange was an "Australian relative" of the applicant. The Tribunal was satisfied that the applicant met the criteria under cl 835.212 and cl 835.221 of Schedule 2 to the Regulations, establishing her status as a "remaining relative" of an "Australian relative" at the relevant times.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant had met the specified criteria for the Subclass 835 visa. The Minister was to consider the remaining criteria for the visa application.

Orders

Orders of the court

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Background

Background to the litigation

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 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? 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. ‘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? 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)

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 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. 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 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? 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. ‘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?

Decision

Reasons for decision

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 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 FosterMemberATTACHMENT - 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 of Schedule 2 to the Regulations,· cl 835.221 of Schedule 2 to the Regulations. Mila FosterMemberATTACHMENT - 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).