Les (Migration)

[2021] AATA 4064

Les (Migration) [2021] AATA 4064 (1 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrei Roman Les

CASE NUMBER:  2003783

HOME AFFAIRS REFERENCE(S):          CLF2019/6049

MEMBER:David Crawshay

DATE:1 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2021 at 11:29am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – applicant’s mother and father were living in Romania at the time of application – were not usually resident in Australia –applicant has near relative(s) who is offshore – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363

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

Social Security Act 1991

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 19 February 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 4 February 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 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, which requires an applicant to be a remaining relative of an Australian relative.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate found that there were near relatives who were not usually resident in Australia.

4. On the basis of information on the Department file showing that the applicant had near relatives other than near relatives who were usually resident in Australia, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act in the following relevant way:

   The Tribunal requests that you to provide evidence that you:

   ·were the remaining relative of an Australian relative under cl.835.212 of the Migration Regulations at the time you applied for the visa on 11 December 2019; and

   ·currently continue to satisfy the requirements of cl.835.212, pursuant to cl.835.221.

5. On 29 September 2021 at 6:29pm, the applicant sent an email to the Tribunal in the following relevant terms:

   Unfortunately your email went to spam and I was unaware of it at all.

   In this situation I have to request an extension to provide supporting documents required. Due to the Covid situation on International level it may take a bit longer to obtain and receive the documents so, if I could have a 30 days extension would be greatly appreciated.

6. The balance of the email is taken up with formalities.

7. The Tribunal has considered that the applicant’s email did not provide the information requested by its s.359(2) letter. However, he has requested an extension of 30 days in which to provide this information.

8. On 30 September 2021 at 12:04pm, the Tribunal responded by letter to the applicant’s email as follows so far as is relevant:

   This email [applicant’s email of 29 September 2021] was written in response to a letter sent by the Tribunal on 16 September 2021 pursuant to s.359(2) of the Migration Act. The s.359(2) letter sought information about whether you were the remaining relative of an Australian relative under cl.835.212 at the time you applied for the visa on 4 February 2019 and whether you currently continue to satisfy this requirement pursuant to cl.835.221.

   You have not provided sufficient information in your email of 29 September 2021 to move the Tribunal to grant an extension of time. Unless you are able to provide sufficient information, the due date for providing information in response to the Tribunal’s s.359(2) letter remains 30 September 2021 and the Tribunal reserves its right to exercise any of the powers available to it, including making a decision without taking any further action to obtain the information under s.359C(1) of the Migration Act.

   [emphasis in original]

9. The Tribunal proceeded to act in this way because, as it indicated in its response letter, it considered that the applicant had not provided sufficient information to justify the extension of time. Specifically, the applicant has given no particulars or evidence of his claim of the Tribunal email being sent to his “spam” folder without his knowledge. Additionally, the applicant has not given particulars of what documents he intends to obtain and receive and how these might address the issue of whether the applicant was the remaining relative of an Australian relative under cl.835.212 at the time of application or whether the applicant currently continues to satisfy this requirement.

10. The applicant has not provided any further correspondence to the Tribunal at the time of this decision, which is after the due date for providing information in response to its s.359(2) letter.

11. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

12. In coming to its decision to proceed to a hearing, the Tribunal has considered whether it should proceed in this way as opposed to adjourning the review under s.363(1)(b) in order to allow the applicant to provide further information to address the substantive issue revealed in its s.359(2) letter. However, given the confined nature of the provisions in question – which require the applicant to prove that he has no near relatives who are usually resident outside of Australia at the relevant times – and the presence of existing evidence that indicates he has near relatives who were residing in a country other than Australia at the time of application, the Tribunal is unable based on the evidence to identify how giving the applicant additional time would allow him to demonstrate that he has been a remaining relative at the relevant times.

13. For these reasons, the Tribunal has decided not to move to adjourn the review under s.363(1)(b).

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The visa application was made on the basis that the applicant is the remaining relative of

    
    

    Ms Livia Miu, 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).

17. In this case Ms Miu is the applicant’s sister and is an Australian citizen. Therefore, she is an Australian relative for these purposes.

    Is the applicant a remaining relative of an Australian relative?

18. 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. 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”.

19. 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)

20. The evidence clearly demonstrates 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.

    Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

21. 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.

22. There is no evidence other than that the Australian relative is usually resident in Australia. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

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

23. 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.

24. “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.

25. The applicant listed his parents, Mr Grigore Les and Ms Uliana Les, along with Ms Miu as being members of the family unit aged 18 or over in a Form 47OF application form dated

    
    

    4 January 2019. He stated that his parents were Romanians who were born in Romania. He stated that they were not migrating with him. In the Form 40 sponsorship form dated

    
    

    4 January 2019, Ms Miu stated that she had a mother and step-father who were not living in Australia. In a Form 54 Family Composition form dated 2 February 2020, the applicant listed his mother and father, the same Mr and Mrs Les, as living in Romania. He did not list them as being “deceased”.

26. The Tribunal has had regard to this evidence. It has considered that the applicant has not provided any additional information concerning his family composition and where members of his family, including “near relatives”, live. This includes in response to a s.359(2) letter which was sent to him on 16 September 2021.

27. Based on this evidence, the Tribunal finds that the applicant’s mother and father were living in Romania at the time of application and were not usually resident in Australia.

28. For these reasons, the Tribunal is not satisfied there are no near relatives of the applicant other than those permitted by the regulations and therefore r.1.15(1)(c) is not met at the time of application.

29. Because the applicant has not satisfied one of the cumulative requirements of r.1.15, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application.

30. The applicant therefore does not satisfy cl.835.212.

31. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa.

32. 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, or 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.

33. The evidence before the Tribunal indicates that the applicant was born on 13 February 1988. 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.

    DECISION

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

    David Crawshay
    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).