Hayes (Migration)

[2021] AATA 4286

Hayes (Migration) [2021] AATA 4286 (18 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dale Anthony Hayes

CASE NUMBER:  2009375

HOME AFFAIRS REFERENCE(S):          CLF2018/180800

MEMBER:Moira Brophy

DATE:18 October 2021

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 18 October 2021 at 1:57pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – parents and siblings are ‘near relatives’ within the meaning of reg 1.15(2) – applicant’s father and other siblings are not usually resident in Australia – applicant has near relative(s) who is offshore – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03,1.15, Schedule 2, cls 835.212,835.221

CASES
Hasran v MIAC [2010] FCAFC 40
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Ignatious v MIMIA [2004] FCA 1395
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 18 May 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).

2. The applicant applied for the visa on 30 July 2018. 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 (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 at the time of application the applicant declared he had a father and siblings whose whereabouts were unknown to him.

4. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by way of video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant, Mr Dale Anthony Hayes, appeared before the Tribunal by way of a video conference on 11 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Jean Claire Hayes, and the brother of the applicant, Mr Ramon Bevan Hayes.

6. For the following reasons, the Tribunal has concluded the matter 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 Ms Jean Claire Hayes, 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: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle, niece or nephew (or their step equivalents).

8. In this case Ms Jean Claire Hayes is the applicant’s mother and she is 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 provided a certified copy of his birth certificate at the time of application. The Tribunal is satisfied Ms Jean Claire Hayes, an Australian citizen, is the mother of the applicant, Mr Dale Anthony Hayes. As the Australian relative in this case is the mother of the 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. The Tribunal is satisfied from the oral evidence given at the time of hearing that Ms Jean Claire Hayes resides in a home she rents and that is her primary place of residence. 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 applicant 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. At the time of hearing, the applicant Mr Dale Hayes told the Tribunal that his mother and two brothers were resident in Australia and had been since his brother Ramon came on a skilled visa in 2008. Ramon’s partner and son, his mother and brother came with him as his dependents. His brother was now an Australian citizen, as was his wife, mother, and other brother. The Tribunal discussed with the applicant where other family members declared at time of application resided. The applicant told the Tribunal he had never met his father. His mother had explained to him that she had been in relationship at the time he was conceived but since his birth his father had not been a part of his life. He understood from what his mother told him that his father had other children and that was why he had included them on his application. The applicant said he had initially come to Australia for a visit but after spending time with his family he realised the importance of having them near him to provide support.

18. Ms Jean Hayes, the mother of the applicant, told the Tribunal that she had always provided her boys with her love and support. Being a single parent had not been an easy road for her, especially considering the prevailing conditions in South Africa at the time. She was grateful for the opportunities afforded to her in Australia, but her happiness was marred by the fact her youngest son was not able to be with them on a permanent basis. While she recognised the difficulties in meeting the criteria for the visa class applied for, she was requesting the Tribunal to consider the application on humanitarian grounds. She was very concerned for her son being separated from his family. There was no one in South Africa who could support her son as she could.

19. Mr Ramon Hayes, brother of the applicant, told the Tribunal while they knew who their father was, he had never been part of their lives. He wanted his brother to be able to stay in Australia and be part of the life he had built here. His wife and three children loved the applicant staying with them.

20. While the Tribunal appreciated the sponsor and the applicant of the brother provided emotional and financial support to the applicant and there was no one else in the family who was in a position to do that, the test is not whether there are family members available to support a person but whether they fall within the meaning of reg 1.15(2). The Tribunal does not have a discretion in this regard.

21. The Tribunal finds that parents and siblings are ‘near relatives’ within the meaning of reg 1.15(2). There is no evidence before the Tribunal that Mr Dale Hayes’ relatives, specifically his father and other siblings are usually resident in Australia and are Australian citizens, Australian permanent residents, or eligible New Zealand citizens. The Tribunal is not satisfied that the applicant has no near relatives other than those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible NZ citizens. The Tribunal is not satisfied the applicant meets reg 1.15(1)(c) of the definition of ‘remaining relative’. The applicant does not meet cl 835.212.

22. There is no evidence before the Tribunal to indicate that the applicant meets the criteria for the grant of the Aged Dependent Relative and Carer visas. In particular, the applicant is not old enough to be granted an age pension under the Social Security Act 1991. He therefore does not meet the definition of the term ‘aged dependent relative’ in reg 1.03.

23. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the Regulations and therefore reg 1.15(1)(c) is not met.

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

25. 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 the prescribed criteria for the visa sought.

    DECISION

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

    Moira Brophy
    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).