Liaw (Migration)

[2022] AATA 471

Liaw (Migration) [2022] AATA 471 (25 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mayson Albert Liaw

REPRESENTATIVE:  Ms Maria Cecilia Giordani (MARN: 0961948)

CASE NUMBER:  2013848

HOME AFFAIRS REFERENCE(S):          CLF2018/194748

MEMBER:Maxina Martellotta

DATE:25 February 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl 835.212 of Schedule 2 to the Regulations.

·cl 835.221 of Schedule 2 to the Regulations.

Statement made on 25 February 2022 at 10:21am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – relatives not usually resident in Australia – near relatives – applicant’s parents spent time in Malaysia – COVID-19 pandemic border closures – continuing business tie in Malaysia – financial assets – family and community connections in Australia – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 835.212, 835.221; rr 1.03, 1.15

CASES

Hafza v Director General of Social Security (1985) 6 FCR 444
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 Home Affairs on 4 September 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 6 September 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

3. The delegate refused to grant the visa on the basis that cl 835.212 was not met because they were not satisfied that the applicant’s parents are usually resident in Australia at the time of visa application and on this basis the applicant had failed to demonstrate that she met the requirements of regulation 1.15 (1) (c ) within the definition of ‘remaining relative’.

4. The applicant appeared before the Tribunal on 1 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brothers Johnson Albert Liaw and Simpson Albert Liaw.

5. The Tribunal exercised its discretion to hold the hearing by video.  The applicant consented with this arrangement. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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 video. The Tribunal also made available an interpreter in the Mandarin and English languages however at hearing the applicant advised that an interpreter was not required. The Tribunal was satisfied that the applicant was  able to fully participate in the hearing without the assistance of an interpreter.

6. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review. The representative was not present at the hearing.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The visa application was made on the basis that the applicant is the remaining relative of Johnson Albert Liaw, 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 or niece or nephew (or their step equivalents).

10. In this case the Tribunal is satisfied and finds that Johnson Albert Liaw is the applicant’s brother and that he is an Australian permanent resident and therefore is an Australian relative for these purposes.

    Is the applicant a remaining relative of an Australian relative?

11. 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.

12. 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’.

13. 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)

14. In this case the Tribunal is satisfied and finds that the Australian relative Johnson Albert Liaw is the applicant’s brother. This means that reg 1.15(1)(a) is met.

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

15. 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.

16. The Court has acknowledged that a person may simultaneously be resident in more than one place. However, once a person has established a home in a particular place, even involuntarily, a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place, together with an intention to return and an attitude that the place remains home: Hafza v Director General of Social Security (1985) 6 FCR 444 at [449]-[450].

17. In this case it is not in contention and the tribunal is satisfied and finds that at the time of application and at the time of hearing the applicant’s brother Johnson Albert Liaw is usually resident in Australia.

    No near relatives: reg 1.15(1)(c)

18. 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.

19. ‘Near relative’ for these purposes is defined in reg 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.

20. The applicant has the following near relatives all of whom are Australian permanent residents:

    a)Her father Ming Kuang Liaw

    b)Her mother Li Siong Lee

    c)Her brothers, Johnson Albert Liaw, Simpson Albert Liaw and Thompson Albert Liaw.

21. The Australian relatives in this case are the parents and brothers of the applicant. At the time of application and at the time of decision the applicant’s brothers were all onshore. The evidence is that the applicants brothers live and work in Australia and consider it their home. The tribunal is satisfied that the applicant’s brothers are usually resident in Australia both at the time of application and at the time of decision.

22. The question is whether the applicant’s parents are usually resident in Australia at the time of the visa application and at the time of decision. In this regard, the Tribunal notes relevant authorities as previously cited.[1]

    [1] Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192 and Hafza v Director General of Social Security (1985) 6 FCR 444 at [449]-[450].

23. The following evidence  before the Tribunal  included oral evidence provided by the applicant and her brothers at hearing, written submissions provided by the applicant’s parents and supporting documents provided to the Tribunal. In the Tribunal’s assessment this evidence was cogent, credible and consistent.  The Tribunal makes the following findings of fact:

    a)At time of the visa application the applicant’s parents were onshore however at the time of decision they are offshore. The visa application states that the applicant’s parents spent time in Malaysia as well as Australia.

    b)The applicant’s parents financially supported all their children to study in Australia. Over the years each of their sons became permanent residents.

    c)In 2008 the parents decided to purchase a residence in Perth.  The parents paid the purchase price of the property. At the time as they were not permanent residents the parents decided to register the legal title in the name of one their sons Simpson who at that time was the only member of the family with permanent residency.

    d)The family still own and occupy the property except for Johnson who is married and lives in his own home. When in Australia the parents live in the property. The children pay the rates, utilities and day to day costs associated with the property. The parents pay for improvements and maintenance of the property.

    e)On 20 September 2012 the parents were granted permanent residency.

    f)The parents spent their time between Australia and Malaysia however the COVID-19 pandemic and border closures has prevented them from returning to Australia in accordance with their established pattern.

    g)The parents own property in Malaysia.  One is the family home where they stay when in Malaysia.  They also have an interest in a palm oil plantation which operates through a company structure. This was a family business which they have been trying to sell for some years but due to economic conditions have been unable to close a deal.   The main reason for their regular trips back to Malaysia is to manage that interest.  Until they can dispose to their interest in the planation, they have a continuing business tie with Malaysia which requires the parent’s attention. 

    h)The parents also have siblings in Malaysia, whom they want to also see as well.  The parents have also maintained their home back in Malaysia because if their daughter is not granted a visa and must return then she has a place to live.  Subject to all of this their intention has been to sell up and locate full time in Australia.

    i)According to written submissions provided by the parents and oral evidence provided at hearing, the intention of the parents has been to sell the plantation and use that money to support themselves and their family in Australia.  The parents now also have grandchildren in Australia and their intention has always been to return to Australia in their retirement to be with their children and grandchildren

    j)Prior to the pandemic their regular pattern of travel was to spend about three months in Australia, return to Malaysia for a period of anywhere from four to eight weeks then return to Australia. This pattern was disrupted after their return to Malaysia on 7 March 2020 when due to the COVID-19 pandemic they were unable to leave Malaysia and return to Australia.

    k)When the parents became aware of the impact of the pandemic the parents were able to change their return flights to Australia to 18 March 2020 however they were unable to obtain an exit pass to leave Malaysia – they have made a number of attempts to change their ticket and return to Australia but without any success. They have since hearing of the West Australian border re-opening have managed to purchase a flight which will have them back in the country on 14 April 2022.

    l)The parents hold bank accounts in Australia which include term deposits and other accounts. They also hold shares through Commsec. They estimate that the total potential cash value of their financial assets in Australia (including shares) is about $844,000.

    m)The applicant’s father purchased a car which the applicant uses however the car is registered in the father’s name and he pays all the registration and maintenance costs of the car and he uses the car when in Australia.

    n)The parents also have a long time involvement with their church in Perth

    o)The parents prior to the pandemic were actively involved in family and church activities in Australia. They make regular donations to Australian charities including their church.

24. In the Tribunal’s assessment, the evidence is that whilst at the time of application and time of decision the parents continue to have connections with Malaysia, they have a close and continuing association with Australia. This is demonstrated by their strong family connections in Australia, their connection to community and church in Australia, their ownership and interest in property and financial assets and their regular physical presence in this country (until this was impeded by the pandemic).  It is also demonstrated by their stated intention that as at the time of application and time of decision to live here as they age together with their children and grandchildren.  The impact of the pandemic has in particular disrupted their ability to implement that plan and impacted on their ability to maintain a regular physical presence in Australia. The tribunal is satisfied that the parents are usually resident in Australia and on this basis, reg 1.15(1)(b) is met.

25. In this matter the tribunal is satisfied and finds that the applicant has no near relative other than those that are usually resident in Australia. For these reasons, the Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is met.

    Adopted child: reg 1.15(1)(d)

26. For the reasons set out above, the Tribunal is satisfied that the applicant is the remaining relative of an Australian Relative at the time of application and also at the time of decision for the purposes of cl 835.212 and cl 835.221.

27. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

28. The Tribunal remits the application for anOther Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cl 835. 212 of Schedule 2 to the Regulations.

    ·cl 835.221 of Schedule 2 to the Regulations.

    Maxina Martellotta
    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).