Indrawan (Migration)

[2017] AATA 935

Indrawan (Migration) [2017] AATA 935 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeffry Indrawan

CASE NUMBER:  1616239

DIBP REFERENCE(S):  CLF2016/28862

MEMBER:Chantal Bostock

DATE:7 June 2017

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 07 June 2017 at 2:51pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Remaining relative of an Australian relative – Child wholly or substantially in the daily care and control of the applicant – Claimed joint custody of child in Indonesia – Parenting plan – Limited contact with child

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 1, Schedule 2, cl 835.212, cl 835.221, r 1.03, r 1.15
Social Security Act 1991

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 13 September 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 10 May 2016. 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).

3. The applicant appeared before the Tribunal on 10 May 2017 to give evidence and present arguments.   

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. By way of background, the applicant, a former Australian permanent resident, returned to Australia on a visitor visa and lodged the present remaining relative visa application, sponsored by his sister, an Australian citizen. In the question requesting details of family members in his Application for migration to Australia by other family members (Form 47OF), the applicant declared his sister and his parents and no one else. In the course of processing the visa application, the Departmental delegate became aware that the applicant had lodged a previous visitor visa application, in which he declared that he was married and had a son born in 2004. The delegate put this information to the applicant, who stated that he had divorced his wife. He submitted a divorce certificate in Indonesian, which indicated that he divorced his wife in 2014. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the applicant did not satisfy the definition of “remaining relative”. The delegate found that the applicant had not provided “any evidence to suggest that the child was in the daily care and control of the applicant”. The delegate further stated as follows:

   The child’s movement records indicate that the child is currently residing offshore and not in the applicant’s daily care and control. A child is considered a near relative as per Regulation 1.15(2)(b)(ii). As the applicant has a near relative residing overseas who is not an Australian citizen, permanent resident or eligible New Zealand citizen the applicant does not meet  regulation 1.15.

7. The applicant gave evidence at the hearing through an accredited interpreter. His sister, the sponsor, attended the hearing as a support person.

8. The applicant explained at the outset that he gave his previous migration agent information relating to his ex-wife and his son.

9. The applicant confirmed that he arrived on a visitor visa on his most recent visit to Australia in February 2016 and lodged the present visa application in May 2016. Prior to coming to Australia, he resigned from his role as manager of a coal mining company in Indonesia. He has returned once to Indonesia for three weeks at the end of last year (2016). His parents paid for his airfare. He stayed at his parents’ apartment in Jakarta. He is currently on a bridging visa, living with his parents, his sister and her children in Sydney. His parents own the house and have supported him financially since his arrival. He does not have permission to work and has not worked. His parents give him food and pocket money, namely on average $400 per month. He worked in Australia previously when he was an Australian permanent resident. His then wife asked him to live in Indonesia.  

10. The applicant married on 3 April 2004 and divorced on 30 January 2014. They have one child, Brandon, who is 12 years old. His ex-wife and his son, Brandon, live in Malang, East Java, which is about one hour by plane from Jakarta. Since their divorce, his ex-wife has worked as a director at her parents’ import/export company.

11. Lawyers acted on behalf of the parties during the divorce. The applicant received the document on the Department’s file, which dealt with the parties’ divorce. The contents of the document (the Indonesian divorce papers) were discussed at the hearing but the Tribunal also requested its translation. The applicant stated that the most important points were as follows:

    ·The parties verbally agreed that he would pay his ex-wife $40 000AUD, which was to cover Brandon’s needs; This sum was not reflected in the Indonesian divorce papers. Furthermore, there was no specific statement relating to Brandon’s care in these papers;

    ·He was allowed to see his son whenever he wanted;

    ·If anything happened to his son, his ex-wife would call him.

12. Following their divorce, full custody of Brandon was granted to his ex-wife. His son went to live with his mother and her parents in East Java, although his maternal grandparents travel back and forth to Jakarta. They live in a house owned by the maternal grandparents. The applicant has given his son pocket money on two occasions ($200 and $300 respectively). When asked for evidence of these payments, the applicant stated that he gave his mother $300 who then told her younger sibling to transfer the money to Brandon. The applicant stated that he sent his son money not out of “obligation” but according to his own conscience.

13. The Tribunal asked the applicant about his contact with his son. The applicant stated that he used What’s App to contact his son 2 to 3 times per week. The Tribunal also requested evidence of this contact, which the applicant agreed to provide. When asked what they discussed, the applicant stated that they talked about school, the need for Brandon to be a good boy and to not be naughty. The applicant stated that he told his son to call him whenever he needed him. The applicant said that there was no issue with Brandon’s behaviour but that he was at the age of mischief and he was a boy. Brandon has never been in trouble.

14. Brandon is in Year 8 at the Bina Bangsa International School, a school which covers primary, middle and high school. He has attended that school since Year One. The applicant paid the enrolment fee of $3000AUD. He paid the fees when he used to work, which was Rp 1.5 million per month. Currently Brandon’s maternal grandparents pay the school fees and he did not know how much the fees were currently. The Tribunal asked the applicant why the grandparents were paying his school fees, when he had given his ex-wife $40000 to cover his son’s needs. The applicant stated that the $40000 was to cover his son’s needs and not his school needs. The applicant stated that his ex-wife managed the money and if it was not sufficient, they would have further discussions. In Indonesia, the culture was different and grandparents did not want their children to use their own money. As long as grandparents could support them, they would. For example, his ex-wife lived next door to her parents and Brandon received money from his grandparents every day. The Tribunal requested evidence that the applicant had paid the $40000. He stated that there was no evidence as it was a long time ago in Indonesia. He did not expect to go to Australia and Indonesian law provided that evidence of the payment was only required if his ex-wife claimed that he had not paid the money. In terms of bank statements, he stated that things were different in Indonesia and he may not have a record of the deposit and that in any event, his ex-wife had closed the account.

15. The applicant was asked whether his son was in good health to which the applicant replied yes. He does not go to the doctor and he has not been told otherwise by his ex-wife or his son.

16. The Tribunal asked whether he saw his son when he returned to Indonesia. The applicant stated that there was a problem with the schedule and that while he was there his son was in Japan. When asked whether he had told them of his visit, the applicant stated that his ex-wife also had a schedule and that they were going to Japan with her parents.

17. The Tribunal asked about Brandon’s last visit in Australia. The applicant stated that he went to the Gold Coast this year and not Sydney. He did not see his son as he did not know about the trip until two days before he left. The Tribunal asked whether he had a good relationship with his ex-wife to which she responded that it was all about Brandon. He uses What’s App to communicate with his wife and agreed to provide records of conversation discussing Brandon to the Tribunal.

18. The Tribunal discussed with the applicant the parenting plan lodged with the Tribunal at the hearing. He stated that it gave his ex-wife full custody of Brandon as it was to enable her to renew Brandon’s Australian passport. He explained that he, his ex-wife and his son lived in Australia including when his son was born from 2004 until 2007 when they returned to Indonesia. As a family they lived for one year in Melbourne and then two years in Sydney. He explained that they returned to Indonesia as his ex-wife had great difficulty looking after the son while in Indonesia it was cheap and easy to get a nanny. His son started at the international school in 2007 and has attended it continuously.

19. The Tribunal put to the applicant that the parenting plan stated at paragraph 3 that his ex-wife was to have sole custody and full parental responsibility of Brandon including day-to-day decisions. He agreed that this was the case. The applicant explained that they obtained the parenting plan as he lived overseas and was possibly staying in Australia for a long time as his parents were old. If something were to happen, and his signature was needed, it was difficult for the parties because of their geographical separation. Even the school required his signature. It was costly and time consuming to send documents back and forth the countries.

20. The Tribunal put to the applicant its concerns relating to whether he paid the $40000, his lack of contact with his son in Australia and Indonesia and the absence of supporting evidence in general and provided him further time to submit more information.

21. Following the hearing, the applicant submitted further material including the following: written submissions; letter from his ex-wife stating that she received Rp 400 000 000 from the applicant for his son’s financial needs such as school tuition and living expenditure; one page extract of the applicant’s divorce certificate; and text message records in Indonesian from April and May 2017.

22. The visa application was made on the basis that the applicant is the remaining relative of the sponsor, Ainy Indrawan, his sister, 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).

23. In this case Ms Indrawan 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?

24. 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.

25. 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’.

26. 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.  

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

27. Based on the material before it, the Tribunal finds that the Australian relative is the sister of the applicant. As the Australian relative in this case is the sister of the applicant, r.1.15(1)(a) is met.

    No near relatives: r.1.15(1)(c)

28. 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.

29. ‘Near relative’ for these purposes is defined in r.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.

30. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’: 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].

31. Based on the material before it, including the oral evidence of the applicant and the material submitted to the Tribunal, the Tribunal makes the findings that follow. The Tribunal accepts that the applicant and his wife divorced. The Tribunal notes that the applicant gave evidence that he divorced in 2014 yet the translated extract of the divorce and the parenting plan provided to the Tribunal indicate that the parties divorced in 2011. The Tribunal finds that the parties divorced in 2011. The Tribunal finds that the applicant and his ex-wife have one child, Brandon, born in September 2004.  Brandon is therefore 12 years of age. In light of the applicant’s evidence (and the Department’s movement records), the Tribunal finds that Brandon is an Australian citizen. Given the applicant’s evidence that he and his then wife moved back to Indonesia with Brandon in 2007 and that Brandon has attended school in Indonesia continuously since 2007, the Tribunal finds that Brandon is not usually resident in Australia. 

32. The applicant’s representative made submissions relating to whether Brandon was wholly or substantially in the daily care and control of the applicant. In terms of the applicant’s financial contribution, the Tribunal is prepared to accept that the applicant paid his ex-wife AUD$40000, given his ex-wife’s statement to that effect. It is also prepared to accept that this money was intended to cover “Brandon’s needs”. The Tribunal also accepted that he has given his son two lots of pocket money. The Tribunal, however, placed weight on the applicant’s evidence that he did not have knowledge of the cost of his son’s school fees and that his son’s school fees are paid for by his son’s maternal grandparents. In terms of the representative’ submissions relating to the applicant’s emotional contribution to his son’s development, the applicant claimed that “he maintained regular contact and control of the Australian child through constant communication”: representative’s submission, received 19 May 2017. The Tribunal notes that the text messages submitted to the Tribunal were in Indonesian and it was not clear as to what the messages related to and additionally, they only covered the April/May 2017 period. It is prepared to accept the applicant’s evidence that he has some contact with his son but is not satisfied that his level of contact with his son indicates that he was at the time of application or at the time of decision “wholly or substantially in the daily care and control” of the applicant. The Tribunal placed significant weight on the applicant’s evidence that he did not see his son in Indonesia in 2016 or in Australia in 2017, which in the view of the Tribunal, is not consistent with Brandon being wholly or substantially in the daily care and control of the applicant. Furthermore, the applicant’s representative stated that the applicant had joint custody with his ex-wife of Brandon, according to the extract of the divorce certificate submitted to the Tribunal.  The Tribunal does not accept this submission given the applicant’s own evidence at the hearing that his ex-wife was granted full custody of Brandon following their divorce and given the parenting plan submitted to the Tribunal, which stated that his ex-wife “is to have sole custody and full parental responsibility of Brandon” and “will have sole responsibility in the making of all major long-term decisions concerning the child’s living arrangements, education, welfare, development and any major difficulties that arise”. The Tribunal finds that the applicant’s own evidence and the documentation submitted to the Tribunal also point against Brandon being wholly or substantially in the daily care and control of the applicant.  On the evidence, the Tribunal is not satisfied that Brandon is or was at the time of application “wholly or substantially in the daily care and control” of the applicant.

33. It therefore finds that this child is a near relative, as defined in r.1.15(2) of the Regulation. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

34. 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 and the time of decision for the purposes of cl.835.212 and cl.835.221.

35. 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 prescribed criteria for the visa sought.

36. 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 applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

37. The evidence before the Tribunal indicates that the applicant was born in 1975. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for cl.838.212 of Schedule 2 to the Regulations.

1. The Tribunal also finds that the applicant is not entitled to the grant of the Subclass 838 (Aged Dependent Relative) visa as there is no evidence before the Tribunal of that the applicant is dependent upon the Australian relative as required by the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212.

   DECISION

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

   Chantal Bostock
   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).