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

1. 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).

2. 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.

3. 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.

4. 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.

5. The visa applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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?

9. 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.

10. 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’.

11. 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)

12. 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)

13. 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.

14. Ms Hema, in the Form 40 sponsorship application which accompanied the visa applicants’ application for the visas, stated that she arrived in Australia in 1996 and is currently residing in Colebee. She further states that she is an Australian citizen and is currently employed in Australia. The Tribunal is satisfied that the applicant’s Australian relative is resident in Australia. As the Australian relative is usually resident in Australia, reg 1.15(1)(b) is met.

    No near relatives: reg 1.15(1)(c)

15. Regulation 1.15(1)(c) requires that the visa applicants have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

16. ‘Near relative’ for these purposes is defined in reg 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.

17. The primary visa applicant stated that her mother and father are in Australia. The primary visa applicant stated that they are Tongan citizens and while they have applied for permanent visas to remain in Australia, these have not yet been granted. The primary visa applicant stated that all her other near relatives are in Australia. In respect of the primary visa applicant’s husband, he stated that he has a sister and his parents living in Tonga and two brothers who reside in France. He stated that his other brother, who was in New Zealand, is now living in Australia.

18. The visa applicants must satisfy the Tribunal that they have no near relatives outside Australia, apart from those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. The evidence before the delegate and the Tribunal is that both the primary visa applicant and her husband have near relatives outside Australia, both in France and Tonga. As the Tribunal has determined that they have near relatives outside Australia, they are unable to satisfy the Tribunal that there are no near relatives other than those permitted by the Regulations and therefore reg 1.15(1)(c) is not met.

19. Accordingly, for the reasons set out above, the Tribunal is not satisfied that the visa applicants are the remaining relatives of an Australian relative at the time of application for the purposes of cl 835.212 and therefore do not meet the criteria for a Subclass 835 visa.

20. 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

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

    John Longo
    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).