De'Laney (Migration)

[2017] AATA 460

De'Laney (Migration) [2017] AATA 460 (1 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jack Fergus De'Laney

CASE NUMBER:  1600490

DIBP REFERENCE(S):  CLF2015/20450

MEMBER:Michelle Grau

DATE:1 March 2017

PLACE OF DECISION:  Brisbane

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.

Statement made on 01 March 2017 at 10:31am

CATCHWORDS

Migration – Other Family (Residence)(Class BU) visa – Subclass 835 (Remaining Relative) –

DNA tests – Father is Permanent Resident – Step siblings are Citizens – No other relatives other than those permitted

LEGISLATION

Migration Act 1958, s.65

Migration Regulations 1994, Schedule 2 – cl 835.212, cl 835.221, r.1.03, r.1.15(1)(a), r.1.15(1)(b), r.1.15(1)(c),

CASES
Scargill v MIMIA

[2003] FCAFC 116

Ignatious v MIMIA

[2004] FCA 1395

MIMIA v Hidalgo

[2005] FCAFC 192

Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation

(1941) 64 CLR 241

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 5 January 2016 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 31 March 2015. 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 delegate found the applicant had a biological father who was a near relative and who was not resident in Australia. Therefore the applicant did not meet r1.15(1)(c ) and accordingly cl. 835.212.

4. The applicant appeared before the Tribunal on 9 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor by telephone.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of Dorothy De’Laney, 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).

7. In this case Dorothy De’Laney is the applicant’s mother and an Australian citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

8. 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.

9. 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’.

10. 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.

11. In this case the applicant is sponsored by his Australian citizen mother, Dorothy De’ Laney.

    Issue – does the applicant meet the definition of Remaining relative, in particular r.1.15(1)(c ) ?

12. The issue is whether the applicant has no near relatives who are not usually resident in Australia as permanent residents, Australian citizens or eligible New Zealand citizens.

13. In this particular case, the issue was the whereabouts of the applicant’s biological father, were unknown. Therefore the delegate refused the application as she found the applicant had a biological father whose whereabouts were unknown and therefore the applicant did not meet r1.15(1)( c ) of the definition of remaining relative.

14. According to the delegate’s decision, the applicant’s birth certificate noted his father was unknown.  On 9 July 2015 the applicant informed the Department of Immigration that Ashley Hudgson was his step-father. In October 2015 he informed Immigration that his biological father had left before he was born and his name is Mark, but does not know his age or country of residence. He has never known his biological father.

15. At hearing, the applicant explained that he had found his biological father’s wife, Lisa Jenkins, on Facebook.  He knows it is her as she is from the same town as his mother and the photos show her with the applicant’s biological father. His mother had also found the biological father’s sister on Facebook and knew that he had married Lisa, from the same town and they had moved to Australia about 24 years ago. The tribunal took evidence from the applicant’s mother who confirmed this. She also said his name was Mark Hughes and he was a couple of years younger than she was and born in 1969. She said she would try to find out more from Mark’s father as he still lived in Basingstoke and she knew where he lived.

16. The applicant and his mother had tried to ‘friend’ Lisa Jenkins on Facebook, but she did not accept. After he sent a message to her on 20 October that he wanted confirmation that his biological father lived in Australia for his visa, Ms Jenkins ‘blocked’ him on Facebook.

17. The tribunal agreed to allow the applicant a further two weeks to track down his father or details of his father’s birth date and when he travelled to Australia so it could be checked on the immigration system. The tribunal explained to the applicant that he needed to show evidence that it was actually his biological father and that his father was an Australian citizen, permanent resident, or eligible New Zealand citizen and usually resident in Australia.

18. After hearing, the applicant provided further information, including birth record searches to try to establish that Mark Hughes was his father. The tribunal found a number of movement records for different Mark Hughes, some of which showed he could be a permanent resident. However, the information provided was not sufficient to establish which Mark Hughes was the applicant’s father.

19. The tribunal sent s359A letter to the applicant setting out its concerns on 23 November 2016. The applicant provided Facebook evidence and mobile phone texts from the Mark Hughes, current partner, Ms Jenkins.  However, that evidence was not sufficient to establish the biological relationship.

20. A tribunal case officer spent some time explaining to the applicant the need to provide documentation and DNA evidence from the applicant and Mark Hughes. The applicant provided statutory declarations from his mother and some photographs.

21. In December 2016, the applicant agreed to provide DNA evidence. Mark Hughes provided DNA on 20 January 2017 but the applicant did not provide his DNA until 3 February 2017.

22. On 23 February 2017, the tribunal was provided with DNA results. The results from DNAQ confirm that Mark Hughes is the applicant’s father. Movement and immigration records confirm that Mark Hughes is an Australian permanent resident and usually resident in Australia. The tribunal accepts the applicant’s father is Mark Hughes.

23. The tribunal sought information from the applicant pursuant to s359(2) about any of Mark Hughes’ other children, as they would be the applicant’s step siblings and therefore need to be usually resident in Australia for the applicant to meet the definition of the remaining relative. A second hearing was scheduled to discuss the information.

24. However, on 24 February 2017 Mark Hughes confirmed in writing that he had two other children, besides the applicant. He provided identification of the two children. Based on their movement records and passports, the tribunal accepts the two step siblings, Taine and Marli, are Australian citizens and are usually resident in Australia.

25. Having now received the DNA and information about the Mark Hughes’ other children, the tribunal is satisfied the applicant has near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. The applicant therefore meets r1.15(1)(c ).

26. For these reasons, the Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is met.

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

27. The tribunal accepts that the sponsor is the applicant’s mother. As the Australian relative in this case is the mother of the applicant, r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

28. 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

29. Based on the movement records, the tribunal accepts the applicant’s mother is usually resident in Australia.

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

    Adopted child: r.1.15(1)(d)

31. 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, r.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.

32. Therefore, r.1.15(1)(d) is met.

33. For the reasons set out above, the Tribunal is satisfied that the applicant is the remaining relative of an Australian Relative at time of application for the purposes of cl.835.212 .

34. Given the findings above, 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

35. 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.

    Michelle Grau
    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).