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

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).
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.
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.
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.
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…

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 Les (Migration)

Details

AGLC: Les (Migration) [2021] AATA 4064
Case: [2021] AATA 4064
Decision Date: 1 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), before the Tribunal. The applicant sought to establish that they were a "remaining relative" of an Australian citizen, their sister, Ms Livia Miu. The core of the dispute revolved around whether the applicant met the criteria for a remaining relative as defined by the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant satisfied the definition of a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. This involved assessing whether the Australian relative (the applicant's sister) was a sibling of the applicant, whether she was usually resident in Australia, and crucially, whether the applicant and their spouse or de facto partner had any "near relatives" other than those who were usually resident in Australia and were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal found that the Australian relative was indeed the applicant's sister, satisfying regulation 1.15(1)(a). Furthermore, the Tribunal was satisfied that the sister was usually resident in Australia, applying the principles from cases such as *Scargill v MIMIA* which consider both physical residency and intention. However, the Tribunal's decision was affirmed because the applicant's parents, who were living in Romania and not usually resident in Australia, were considered "near relatives" under regulation 1.15(2). As these near relatives were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens, the applicant failed to meet the requirements of regulation 1.15(1)(c).

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision 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 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). 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? 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”. 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) 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) 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. 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)

Decision

Reasons for decision

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