DAVENPORT (Migration)

[2017] AATA 2854

DAVENPORT (Migration) [2017] AATA 2854 (14 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mignon Hazelie Lara DAVENPORT

CASE NUMBER:  1717522

DIBP REFERENCE(S):  CLF2016/93928

MEMBER:Antoinette Younes

DATE:14 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 14 December 2017 at 5:28pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 115 (Remaining Relative) – Remaining relative of an Australian relative – Applicant estranged from her daughter – Usually resident in Australia

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 31 July 2017 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 December 2016. 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the applicant has a near relative as defined in reg.1.15(1)(c).

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   HEARING INVITATION

6. On 9 November 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled on 19 December 2017. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration. On 16 November 2017, the applicant responded to the hearing invitation by noting that she did not wish to attend the hearing. She however indicated that further submissions would be provided by 12 December 2017.  The Tribunal has received those submissions.

7. In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the remaining relative of her brother and sponsor, Mr Paul Anthony Pryce 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 case Mr Paul Anthony Pryce is the applicant’s brother and he is an eligible New Zealand citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

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.

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

13. On the evidence, the Tribunal is satisfied that the Australian relative is a brother of the applicant.  As the Australian relative in this case is the brother of the applicant, r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.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 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. On the evidence before it, the Tribunal is satisfied that the Australian relative is usually resident in Australia.  Therefore, r.1.15(1)(b) is met.

    No near relatives: r.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 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. The evidence before the Tribunal indicates that the applicant has a daughter, Valerie Descrieres. In the visa application (Form 47 0F), the applicant declared that Valerie Descrieres’ date of birth is 9 March 1977, that her country of current residence is Iceland, and that she is not an Australian citizen, a New Zealand citizen or Australian permanent resident. The applicant indicated that she is estranged from her daughter and that they have had no contact.  In submissions provided to the Tribunal, it was conceded that the relevant Regulations do not make distinction as to the quality of the relationship between any near relatives and only takes into account whether or not a person has a near relative. The submissions, amongst other things referred to arguments that in this case there are unique and exceptional circumstances to warrant Ministerial Intervention. The Tribunal acknowledges those submissions. The Tribunal has no discretion in this matter and the Tribunal makes no comments in relation to any request for Ministerial Intervention as that is a matter entirely up to the Minister.

19. On the evidence, the Tribunal finds that the applicant has a near relative as defined in r.1.15(2) of the Regulations and therefore, r.1.15(1)(c) is not met.

20. 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/or at the time of decision for the purposes of cl.835.212 and/or cl.835.221.

21. 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.

22. Given the findings above, the appropriate course is to affirm the decision not to grant the applicant the visa.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Antoinette Younes

    
    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).