Culas (Migration)

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 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
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.
The Tribunal officer obtained a current and working email address for Mr Culas.
The Tribunal sent a rescheduled hearing invitation to the applicant using the email address Mr Culas provided on 21 September 2023.
Tribunal hearing on 5 October 2023
The applicant appeared before the Tribunal on 5 October 2023 to give evidence and present arguments, in person. The Tribunal also received oral evidence from the applicant’s brother, Mr Culas.
At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.
Pre and post hearing submissions
The Tribunal did not receive any pre or post hearing submissions from or on behalf of the applicant other than the lodging of the application for review and correspondence with the applicant and Mr Culas in relation to administrative aspects of this review.
Tribunal’s decision
The Tribunal has had regard to the oral evidence of the applicant and his brother Mr Culas, all of the information in the Tribunal’s file and in the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicant’s application for the Remaining Relative visa, the documents provided to the Department in support of that application and copies of communication between the Department and the applicant.
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.
Mr Culas explained in some detail the applicant’s health issues, which for present purposes the Tribunal accepts without making specific findings.
The applicant explained to the Tribunal that he wants to stay in Australia, wishes to keep living with his brother Mr Culas and his family and wants to become a permanent resident of Australia so he can learn a trade, get a job and be an active and productive member of the community. The applicant expressed a clear and unambiguous desire not to have to depart Australia.
Mr Culas asked the Tribunal to grant his brother a visa on the grounds of compassionate and compelling circumstances. The Tribunal explained to the applicant and Mr Culas that the Tribunal does not have the power to grant a visa, nor does it have the power to waive the requirements of cl 835.212 or cl 835.221 whether in compassionate or compelling circumstances or on any other ground.
The Tribunal finds that based on all of the evidence before it that the applicant is not a ‘remaining relative’ of his sister Ms Culas either at the time of application or at the time of this decision because the applicant has three ‘near relatives’ – being two brothers and a sister – who usually reside outside Australia and continue to do so.
Adopted child: reg 1.15(1)(d)
If the applicant is a child who has not turned 18 and has been adopted by an Australian citizen, permanent resident or an eligible New Zealand Citizen, while overseas, reg 1.15(1)(d) requires that at the time of application the adoptive parent has been residing overseas for at least 12 months. This requirement does not apply in this case.
Conclusion
For the reasons set out above, the Tribunal is not satisfied that the applicant was the remaining relative of an Australian Relative at the time of application for the purposes of cl 835.212 and is not the remaining relative of an Australian Relative the time of this decision for the purposes of cl 835.221.
Request for the applicant’s application to be ‘referred’ to the Minister
The Tribunal explained to the applicant and Mr Culas that the Tribunal could refer the applicant’s application for a visa to the Minister with a request that the Minister intervene to grant the applicant a more favourable outcome if the Tribunal considered that appropriate in the circumstances. The Tribunal explained that the applicant could also directly write to the Minister to seek the Minister’s intervention in his case. The applicant and Mr Culas requested the Tribunal to refer the applicant’s visa application to the Minister to consider intervening in the applicant’s case.
Section 351 of the Act states:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3)The power under subsection (1) may only be exercised by the Minister personally.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances
The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.
There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is actually the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their application, irrespective of whether the Tribunal makes such a ‘referral’ or not.
In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be referred to the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.
While the administration of the Ministerial Instructions by the Department has been ruled as unlawful by the High Court of Australia, the Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.
The Ministerial Instructions are not a statement of law but do make it clear that Ministerial Intervention is not part of the visa process and so the Tribunal as presently constituted does not make such referrals lightly.
The Tribunal explained to the applicant and Mr Culas during the hearing the possibility of requesting the Minister to intervene in the applicant’s circumstances, how that process works at the Tribunal level and that irrespective of whether the Tribunal makes a referral or not, the applicant can seek Ministerial Intervention himself.
The Tribunal has considered the applicant’s circumstances but has decided not to refer his visa application to the Minister for the Minister to consider intervening in the applicant’s case. This does not prevent the applicant, or Mr Culas on his behalf, from writing to the Minister to seek that the Minister intervene in his circumstances.
The reasons the Tribunal has decided not to refer the applicant’s visa application to the Minister are:
·The applicant’s circumstances are not an unintended consequence of the migration legislation;
·The applicant’s last substantive visa was an Electronic Travel Authority Subclass 601 visa which is a temporary visa granted in part on the basis of reassurances from applicants for such visas that they will return to their home country before the expiry of the visa, recognising that circumstances can change once someone is in Australia;
·Since first arriving in Australia in June 2009, the applicant has departed Australia six times, most recently in October 2019;
·While the Tribunal has considerable empathy and compassion for the applicant’s circumstances and the support he receives from his Australian permanent resident sister Ms Culas and brother Mr Culas, those circumstances as they have been conveyed to the Tribunal do not appear to the Tribunal to be unique or exceptional circumstances to the extent that might persuade the Minister to intervene; and
·The Tribunal also accepts that after having not departed Australia since 19 October 2019, having to depart Australia is likely to cause each of the applicant, Ms Culas, Mr Culas and his family considerable emotional upset. However, there is no medical or similar evidence before the Tribunal that their circumstances would result in serious, ongoing and irreversible harm and continuing hardship to the applicant or the Australian permanent resident family unit of Ms Culas or Mr Culas.

As noted above, the Tribunal’s decision not to refer the applicant’s visa application to the Minister does not prevent the applicant from writing to the Minister to seek the Minister’s intervention.
Other visa subclasses: Subclass 836 Carer visa, Subclass 838 Aged Dependent Relative visa
The applicant does not claim to be the ‘carer’ of a resident in Australia for the purposes of the grant of Subclass 836 Carer visa and there is no information before the Tribunal that would indicate the applicant could meet the requirements for the grant of that visa.
The applicant is aged 62 years and does not claim to be old enough to be granted an age pension under the Social Security Act 1991 (Cth) and therefore there is no information before the Tribunal that would indicate the applicant could meet the requirements for the grant of a Subclass 838 Aged Dependent Relative visa.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Michael Ison
Senior 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).

[2023] AATA 4059

22 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction