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

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).
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.
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.
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.
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…

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 Hayes (Migration)

Details

AGLC: Hayes (Migration) [2021] AATA 4286
Case: [2021] AATA 4286
Decision Date: 18 October 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 applicant, Mr Dale Anthony Hayes, sought this visa on the basis that he was the remaining relative of his Australian citizen mother, Ms Jean Claire Hayes. The decision was made by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 835 visa, particularly whether he qualified as a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. This involved assessing whether the applicant's Australian relative (his mother) was usually resident in Australia, and crucially, whether the applicant and his spouse had any "near relatives" who were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal found that the applicant's mother, Ms Jean Claire Hayes, was an Australian citizen and was usually resident in Australia, satisfying paragraphs (a) and (b) of regulation 1.15(1). However, the Tribunal concluded that the applicant did not satisfy paragraph (c) of regulation 1.15(1). This was because the applicant had near relatives, specifically his father and other siblings, who were not usually resident in Australia and did not meet the criteria of being Australian citizens, permanent residents, or eligible New Zealand citizens. Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.

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 the matter 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 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). 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? 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 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) 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. 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)

Decision

Reasons for decision

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