FAKALELU (Migration) - [2021] AATA 2051

FAKALELU (Migration) [2021] AATA 2051 (8 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Mele Funaki Fakalelu
Mr Lisiate Havi Fakalelu
Mr Mapafisi Tolukilu A St Paul Fakalelu
Mr Richard Harvey Dieter Uchtdorf Fakalelu
Miss Mele Fisiitotoa Feleave Etivaise Fakalelu
Miss Evelyn Lilano Penitina Fakalelu
CASE NUMBER:  1931586
HOME AFFAIRS REFERENCE(S):          CLF2019/35597
MEMBER:John Longo
DATE:8 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 08 June 2021 at 3:09pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – no near relatives except Australian citizens or permanent residents usually resident in Australia – primary applicant’s parents in Australia have applied for permanent visas – secondary applicant’s relatives in home country and third country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(c), (2), Schedule 2, cls 835.212, 835.221
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 October 2019 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 13 September 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 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.212.
The delegate refused to grant the visa on the basis that cl 835.212 was not met because the primary visa applicant (the applicant) had not demonstrated that her biological parents are usually resident in Australia, or are Australian citizens, Australian permanent residents or eligible New Zealand citizens. Consequently, the delegate found that the visa applicants had not demonstrated that they met the requirements of reg 1.15(1)(c) within the definition of ‘remaining relative’ at reg 1.15 at time of application.
The visa applicants appeared before the Tribunal on 31 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Meliame Fanaafi Hema and Mr Sione Finau Tupou. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.
The visa applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND…

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 FAKALELU (Migration)

Details

AGLC: FAKALELU (Migration) [2021] AATA 2051
Case: [2021] AATA 2051
Decision Date: 8 June 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The primary applicant, Ms. Mele Funaki Fakalelu, sought to establish that she was a "remaining relative" of her sister, Ms. Meliame Fanaafi Hema, who is an Australian citizen. The Tribunal was required to determine whether the applicant met the criteria for this visa subclass.

The central legal issue before the Tribunal was whether the applicant satisfied the definition of a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. This required the Tribunal to assess whether the applicant's Australian relative (her sister) was usually resident in Australia, and crucially, whether the applicant and her spouse had no "near relatives" other than those who were usually resident in Australia and were Australian citizens or permanent residents. The Tribunal also considered, and dismissed, claims for Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative) visas due to a lack of evidence regarding dependency and carer requirements.

The Tribunal affirmed the decision not to grant the visa. It found that while the applicant's sister was an Australian citizen and therefore an "Australian relative," and that the sister was indeed usually resident in Australia, the applicant failed to demonstrate that she had no "near relatives" other than those who met the specified criteria. The Tribunal noted that the applicant's parents in Australia had applied for permanent visas, implying they were not yet permanent residents or citizens at the time of the application, and that the applicant had other relatives in her home country and a third country. The Tribunal applied the principles from cases such as *Scargill v MIMIA* and *Ignatious v MIMIA* regarding the meaning of "usually resides," which involves both physical residency and intention. The Tribunal concluded that the applicant did not meet the requirements of regulation 1.15(1)(c) concerning the absence of near relatives.

Orders

Orders of the court

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Background

Background to the litigation

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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 Meliame Fanaafi Hema, who the applicant claims is her 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: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents). In this case Meliame Fanaafi Hema is the applicant’s sister and an Australian citizen 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. ‘Remaining relative’ is defined in reg 1.15 of the Regulations, which is set out in the attachment to this decision. 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’. 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: reg 1.15(1)(a) The applicant confirmed at the hearing that Ms Meliame Fanaafi Hema is the sister of the primary visa applicant, Ms Mele Funaki Fakalelu. The Tribunal notes that the Department was provided with birth certificates which confirm Ms Hema and the primary visa applicant share the same parents. The Tribunal is satisfied, based on the evidence provided to the Department, that Ms Hema is the primary visa applicant’s sister. As the Australian relative in this case is the sister of the visa review 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.

Decision

Reasons for decision

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. There is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl 836.212, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The visa applicants are therefore not entitled to the grant of a Subclass 836 (Carer) visa. The Tribunal also finds that the visa applicants are not entitled to the grant of the Subclass 838 (Aged Dependent Relative) visa as there is no evidence before the Tribunal that the visa applicants are dependent upon the Australian relative as required by the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212.DECISION The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.John LongoMemberATTACHMENT – 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).

Ratio Decidendi

Legal Principle Established

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