Contreras Thais (Migration)

[2019] AATA 2746

Contreras Thais (Migration) [2019] AATA 2746 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Juan Jose Contreras Thais
Nancy Antonia Villajuan Rimari
Dhayana Ashley Contreras Villajuan
Luis Eduardo Contreras Villajuan

CASE NUMBER:  1822688

HOME AFFAIRS REFERENCE                 CLF2017/63251

MEMBER:Lilly Mojsin

DATE:4 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 04 April 2019 at 10:16am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining relative) – applicant has near relatives offshore – spouse’s family members in Peru – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cls 835.212, 835.221, rr 1.03, 1.15

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 Immigration on 26 July 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 12 September 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 applicants are 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 delegate refused to grant the visas on the basis that cl.835.212 was not met because the applicant and his spouse had near relatives who resided in Peru.

4. On 31 January 2019 the Tribunal wrote to the applicants pursuant to s.359A of the Act stating:

   The applicant Juan Jose Contreras Thais has stated in his application that he is the remaining relative of his mother, Rosalinda Delicia Thais, who is an Australian Citizen. The applicant has included his spouse, Nancy Antonia Villajuan Rimari in this application. Both the primary applicant and his spouse are subject to assessment to meet r.1.15.

   Nancy Antonia Villajuan Rimari Spouse’s father Bacilio Metodio Villajuan Collachagua, currently resides in Peru and her sister Emma Ida Villajuan Rimari, currently resides in Peru. No evidence or information has been provided on the where about of applicant’s father Juan Carlos Contreras Salazar.

   This information is relevant to the review because if the applicant for a remaining relative visa, Juan Jose Contreras Thais or his spouse, have a near relative ie a parent, brother, sister, who are not usually resident in Australia then Juan Jose Contreras Thais is unable to meet regulation 1.15(1)((c).

   If we rely on this information in making our decision, we may find that Juan Jose Contreras Thais is unable to meet cl.835.212 of the regulations and affirm the decision under review.

5. The applicant was invited to comment on or respond to the information in question. No comment on or response to the information in question was received from the applicant within the prescribed time for responding to the statutory invitation.

6. On 5 March 2019 the Tribunal received a Form 956 on behalf of the applicant changing his migration agent.

7. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the remaining relative of Rosalinda Delicia Thais who the applicant claims is their 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).

9. In this review Rosalinda Delicia Thais is the applicant’s mother and is an Australian citizen and therefore is an Australian relative for these purposes.

10. 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.

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.

13. As the Australian relative in this review is the mother of the applicant, r.1.15(1)(a) is met.

14. 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.

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

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. Nancy Antonia Villajuan Rimari is the applicant’s spouse. Her father Bacilio Metodio Villajuan Collachagua, currently resides in Peru and her sister Emma Ida Villajuan Rimari, also resides in Peru. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

19. For the reasons set out above, the Tribunal is not 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.

20. 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.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Lilly Mojsin
    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).