Culas (Migration) - [2023] AATA 4059

Culas (Migration) [2023] AATA 4059 (22 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Felix Gerald Culas
CASE NUMBER:  2002569
HOME AFFAIRS REFERENCE(S):          CLF2020/266
MEMBER:Michael Ison
DATE:22 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 22 November 2023 at 9:54am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – Australian citizens or permanent residents or eligible New Zealand citizens – visa applicant’s health issues – relatives outside Australia – request for Ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 836.212, 835.221; Schedule 8, Condition 8115; rr 1.03, 1.15
Social Security Act 1991
CASES
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is Mr Felix Gerald Culas who is a 62-year-old national of Malaysia. Mr Culas is referred to as the applicant in these reasons for decision. The applicant first arrived in Australia on 6 June 2009 as the holder of an Electronic Travel Authority (Visitor) (Class UD) (Subclass 976) visa that was valid to 4 June 2010. The applicant departed Australia on 19 June 2009.
On 3 December 2013 the applicant was granted an Electronic Travel Authority (Class UD) (Subclass 601) visa that was valid to 3 December 2014. The applicant arrived in Australia as the holder of the Subclass 601 visa on 17 December 2013 and departed Australia on 31 December 2013.
On 14 November 2017 the applicant was granted a second Subclass 601 visa that was valid to 14 November 2018. The applicant arrived in Australia as the holder of the second Subclass 601 visa on 16 November 2017 and departed Australia on 8 December 2017.
On 13 November 2018 the applicant applied for an offshore Visitor (Class FA) (Subclass 600) (Sponsored Family Stream) visa which was refused on 13 December 2018. No merits review application was lodged at the Tribunal for that visa refusal.
On 13 December 2018 the applicant applied for and was granted his third Subclass 601 visa that was valid to 18 January 2020, but only permitted a maximum three month stay in any one visit. The applicant arrived in Australia on 23 December 2018 as the holder of the third Subclass 601 visa and departed Australia on 19…

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 Culas (Migration)

Details

AGLC: Culas (Migration) [2023] AATA 4059
Case: [2023] AATA 4059
Decision Date: 22 November 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant Mr Felix Gerald Culas, a Malaysian national, an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative). Mr Culas sought to be recognised as a remaining relative of his sister, Ms Mary T Shiamala M Culas, who is an Australian permanent resident.

The primary legal issue before the Tribunal was whether Mr Culas satisfied the criteria for a Subclass 835 visa, specifically whether he was a "remaining relative" of an "Australian relative" at the time of his application and at the time of the decision. This required determining if his sister met the definition of an Australian relative, and crucially, if Mr Culas had any "near relatives" other than those who were usually resident in Australia and held Australian citizenship or permanent residency.

The Tribunal accepted that Ms Culas was Mr Culas's sister and was usually resident in Australia, thus satisfying the criteria for an Australian relative. However, the Tribunal found that Mr Culas had three siblings residing in New Zealand who were not Australian citizens or permanent residents. As these siblings were considered "near relatives" under regulation 1.15(2) of the Migration Regulations 1994, and they did not meet the exception criteria of being usually resident in Australia and holding Australian citizenship or permanent residency, Mr Culas failed to satisfy the "no near relatives" requirement of regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant is Mr Felix Gerald Culas who is a 62-year-old national of Malaysia. Mr Culas is referred to as the applicant in these reasons for decision. The applicant first arrived in Australia on 6 June 2009 as the holder of an Electronic Travel Authority (Visitor) (Class UD) (Subclass 976) visa that was valid to 4 June 2010. The applicant departed Australia on 19 June 2009. On 3 December 2013 the applicant was granted an Electronic Travel Authority (Class UD) (Subclass 601) visa that was valid to 3 December 2014. The applicant arrived in Australia as the holder of the Subclass 601 visa on 17 December 2013 and departed Australia on 31 December 2013. On 14 November 2017 the applicant was granted a second Subclass 601 visa that was valid to 14 November 2018. The applicant arrived in Australia as the holder of the second Subclass 601 visa on 16 November 2017 and departed Australia on 8 December 2017. On 13 November 2018 the applicant applied for an offshore Visitor (Class FA) (Subclass 600) (Sponsored Family Stream) visa which was refused on 13 December 2018. No merits review application was lodged at the Tribunal for that visa refusal. On 13 December 2018 the applicant applied for and was granted his third Subclass 601 visa that was valid to 18 January 2020, but only permitted a maximum three month stay in any one visit. The applicant arrived in Australia on 23 December 2018 as the holder of the third Subclass 601 visa and departed Australia on 19 March 2019. The applicant returned to Australia as the holder of the third Subclass 601 visa on 4 April 2019 and departed Australia on 1 July 2019. The applicant next returned to Australia as the holder of the third Subclass 601 visa on 12 July 2019 and departed Australia on 8 October 2019. The applicant then returned to Australia as the holder of the third Subclass 601 visa on 18 October 2019 and has not departed Australia since. On 30 December 2019 the applicant applied for an onshore Other Family (Class BU) Remaining Relative (Subclass 835) visa on the basis he is a remaining relative of his sponsor Ms Mary T Shiamala M Culas, who is the applicant’s sister. It is the refusal to grant the applicant that Other Family visa that is the subject of this review. Ms Culas is a 69-year-old national of Malaysia and an Australian Permanent resident as the holder of a (Class BU) Other Family (Residence) (Subclass 155) Resident Return visa. Ms Culas was most recently granted a Subclass 155 visa on 21 August 2019. Ms Culas is referred to as the sponsor in these reasons for decision. Shortly after applying for the Subclass 835 Remaining Relative visa the applicant was granted a Bridging A (Class WA) (Subclass 010) visa on 6 January 2020, which he continues to hold at the time of this decision. The applicant’s Bridging A visa has condition 8115 (Limited Activities) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached. The primary decision of a delegate of the Minister

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 Ms Culas, who the applicant claims is their Australian relative. In this case the Tribunal accepts that Ms Culas is the applicant’s sister and is a permanent resident of Australia 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.The requirement to be a parent or sibling: reg 1.15(1)(a) Ms Culas provided identity documents to the Department that the Tribunal accepts confirm she is the biological sister of the applicant. 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) 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. The information before the Tribunal is that Ms Culas was most recently granted a Subclass 155 Resident Return visa on 21 August 2019 that is valid until 21 August 2024 and is and remains usually resident in Australia as confirmed by her Australian government movement records, an update copy of which the Tribunal obtained on 17 August 2023: As the Australian relative is usually resident in Australia, reg 1.15(1)(b) is met.No near relatives: reg 1.15(1)(c) 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. The applicant told the Tribunal during the Tribunal hearing that he has three siblings who reside in New Zealand:·Mr Bertolomeo Culas, born in 1951;·Mr Patrick Culas, born in 1957; and·Ms Geraldine Culas, born in 1959. The applicant and Mr Culas told the Tribunal that they have had no contact with these siblings for over 10 years, Bertolomeo has lived in New Zealand for over 25 years and Geraldine has recently had open heart surgery. The applicant and Mr Culas explained to the Tribunal that the applicant has significant permanent and ongoing health issues, has never worked, and is totally reliant on Mr Culas and their sister Ms Culas for support and care. Mr Culas explained that if his brother, the applicant, has to return to Malaysia there is no-one there to care for him and he would be unable to care for himself. The applicant expressed great concern about having to return to Malaysia if he is not granted a visa to stay in Australia.

Decision

Reasons for decision

Shortly after applying for the Subclass 835 Remaining Relative visa the applicant was granted a Bridging A (Class WA) (Subclass 010) visa on 6 January 2020, which he continues to hold at the time of this decision. The applicant’s Bridging A visa has condition 8115 (Limited Activities) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached. The primary decision of a delegate of the Minister As the applicant did not provide the Tribunal with a copy of the primary decision the Tribunal relied on information provided to the Department by the applicant in his application for the visa and information in the documents provided to the Department in support of his application. The applicant applied for the visa on 30 December 2019. 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 Regulations. Relevantly to this matter, the primary criteria to be met include cl 835.212 which provides:The applicant is a remaining relative of an Australian relative. Regulation 1.03 provides the term ‘remaining relative’ has the meaning set out in reg 1.15, which is set out in the attachment to this decision. That definition requires that a person claiming to be a remaining relative of an Australian relative must have no ‘near relatives’ other than near relatives who are usually resident in Australia and are Australian citizens or permanent residents or eligible New Zealand citizens. The term ‘near relative’ is defined in reg 1.15(2) to include a parent, brother or sister, amongst others, of the visa applicant. The delegate found that based on information provided by the applicant in his application for the visa he has two adult brothers and an adult sister who all reside in New Zealand but none of whom are Australian citizens or Australian permanent residents or eligible New Zealand citizens. For this reason, the delegate found the applicant did not meet the requirements of cl 835.212 at the time of the application for the visa. Tribunal hearing scheduled for 21 September 2023 The applicant was first invited to appear before the Tribunal on 21 September 2023 by invitation sent on 24 August 2023. The applicant did not appear at the appointed time and date. The applicant authorised his brother, Mr Silverius Gerald Raju Culas, to receive documents and information in relation to this review from the Tribunal on the applicant’s behalf. Mr Silverius Gerald Raju Culas is referred to in these reasons as Mr Culas. A Tribunal officer rang Mr Culas at the scheduled time for the hearing. Mr Culas advised the officer he had not received the hearing invitation as the last email address he provided to the Tribunal “no longer works” because Mr Culas stated he had forgotten the password for that email account. Mr Culas confirmed however, that he had received two text messages from the Tribunal one week and one day before the hearing reminding him about the hearing.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Michael IsonSenior MemberATTACHMENT - 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).