KOROMA (Migration)

[2018] AATA 2361

KOROMA (Migration) [2018] AATA 2361 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abubakarr Wanda KOROMA

CASE NUMBER:  1722717

DIBP REFERENCE(S):  CLF2016/40568

MEMBER:Michael Cooke

DATE:25 June 2018

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 25 June 2018 at 4:16pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – Minor children live overseas – Under 18 – No custody of the children – Caring for mother in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15 Schedule 2 cls 835.211, 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 Immigration on 13 September 2017 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 1 July 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). Relevantly to this matter, the primary criteria to be met include cl.835.211.

3. The delegate refused to grant the visa on the basis that cl.835.211 was not met because he had ‘overseas near relatives’.

4. The applicant appeared before the Tribunal on 25 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father.

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

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 his mother 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).

8. In this case the Australian relative is the applicant’s mother and who 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 r.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: r.1.15(1)(a)

12. The Tribunal finds that as the Australian relative in this case is the mother of the applicant, and r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.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 r.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 r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

14. The Tribunal finds that as the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

    No ‘near relatives’: r.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 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.

    Findings and reasons as to whether the applicant has ‘near relatives’ as so defined:

    ·The applicant has confirmed in oral evidence that he has 3 overseas children who are the product of a previous marriage and a prior de facto relationship. He has a partner in Australia, he informed. His entire family (apart from his children) reside in Australia. The location of his children is Great Britain. None of the applicant’s children are usually resident in Australia and are all British by nationality.

    ·The Tribunal was told in the hearing that the applicant’s ‘near relative’ children are all under 18 years of age and live with their mothers. The applicant was questioned in the hearing as to whether he had the ‘daily care and control’ of his Britain-based children. He indicated that he had sent money from time to time to the mothers of his children whereupon his ex-wife had cancelled the account. His ex-partner had taken the money he continues to send but he was unaware how the funds were distributed. He also had a Court Order allowing him access to his younger children. However, his ex-partner always informed him that his visitation rights were inconvenient and if he attempted to press any legal right she would claim harassment. He thus had not had further contact he advised despite his wish to do so.

    ·The history of his parenting of his children (which he outlined in oral evidence) indicates he has had no effective input into the daily lives of his children. He has not visited them since 2014 or been allowed by their mothers to visit them he informs. He has not been consulted nor had any input into daily matters affecting their welfare such as their schooling, religious instruction or discipline - he advised. He informed in oral evidence that he had given no advice on their future prospects. He said he had no way of contacting the children and had not been contacted by them either by telephone or email. He had difficulty in getting divorced because he was even unaware of where his ex-wife lived and how to contact her.

17. The Tribunal finds that the applicant has had no significant role in his children’s lives other than sending money to them from time to time when he could afford it. He has lived in Australia since July 2016 whence he is acting as a carer of his mother who has cancer he claims - assisted by his partner. He does work he informs. He has provided copious evidence of her treatment regime to the Tribunal. He insisted that for cultural reasons he was obliged to look after her and had done so. His sisters did visit her but had their own family responsibilities and were unable to assist her. His father gave oral evidence that he was separated from the sponsor but appreciated that the applicant’s presence was very important to her and they were very close. He assisted her with her health care which was precarious.

18. The Tribunal accepts that the applicant may have wished to have more to do with his children when he lived in Britain. It accepts that he has sought to assist them financially as an indication of his parental concern from Australia. He has claimed to have some legal rights to see them which he has not been able to effectively access. He indicated through his representative to the Department in June 2016 that he had ‘made private out of court arrangement for child to permanently reside with the mother Nadia Danquah’ (D1, f.61) and he ‘have made arrangement for the child Abubakarr David Koroma to live with their mother (Hussianatu Conteh) without court order (TD1, f.60). Yet he has indicated that despite these arrangements he is unable to contact or visit his children. There is no evidence that he has legally enforced any claimed parental rights granted to him by British Courts. He may at some stage by required to sign off such things as a passport - being the children’s’ parent.

19. The Tribunal is satisfied, however, that when the history of his relationship with his British children is viewed cumulatively and historically his children cannot be regarded as being either ‘wholly or substantially’ in the applicant’s ‘daily care and control’ as required by reg.1.15(2)(b)(ii).

20. For these reasons, the Tribunal is satisfied that he has ‘near relatives’ other than those permitted by the Regulations and that, therefore, r.1.15(1)(c) is not met.

    Conclusion on cl.835.212/835.221:

21. For the reasons set out above, the Tribunal is not satisfied that the applicant is the ‘remaining relative’ of an Australian relative either at the time of application or at the time of decision for the purposes of cl.835.212 and cl.835.221.

22. 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. He is not an orphan relative as so defined because his parents are both still alive. He is also not a ‘carer’ of his sponsor as he had provided no evidence of any ability to meet the regulatory requirements for the grant of a Carer visa.

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

    Michael Cooke
    Senior 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).