Lutumailagi (Migration)

[2019] AATA 2164

Lutumailagi (Migration) [2019] AATA 2164 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Vaulina Vacoga Lutumailagi
Savenaca Degei Lutumailagi

CASE NUMBER:  1822363

HOME AFFAIRS REFERENCE:                CLF2017/61472

MEMBER:Lilly Mojsin

DATE:3 May  2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

STATEMENT MADE ON 03 MAY 2019 AT 9:47AM

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – near relative – spouse’s father and brother in Fiji – applicant’s sister in the USA – no contact – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 18 July 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 31 August 2017.

3. 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 applicants are 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).

4. The delegate refused to grant the visas on the basis that cl.835.211 and cl.835.221 was not met because the applicant has 1 near relative who resides in the USA and her spouse has 2 near relatives who reside in Fiji.

5. The applicants appeared before the Tribunal on 15 March 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of Timaleti Droceva, 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).

7. In this review Timaleti Droceva is the applicant’s sister and an Australian citizen and therefore is an Australian relative for these purposes.

8. 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.

9. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

10. 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.

11. As the Australian relative in this case is the sister of the applicant, r.1.15(1)(a) is met.

12. 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.

13. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

14. 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.

15. ‘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.

16. In a s.359A response the applicant stated that her spouse has no contact with her father or brother and she has no contact with her sister in the USA.

17. Whilst the Tribunal is sympathetic to the wishes of the applicant to remain in Australia with her family, the Tribunal has no discretion in this instance.

18. The Tribunal finds the applicant’s sibling Lice Naulumatua is currently residing in America. Her spouse’s father Joeli Lutumailagi currently resides in Fiji and a sibling Samuela Dawai currently reside in Fiji and they are not Australian citizens, Australian permanent residents or eligible New Zealand citizens.

19. 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.

20. 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.

21. The applicant opined to the Tribunal that her parents are old, her father is 78 years of age and her mother is 75 years. Her sister in Australia is a full time nurse with 3 children and is unable to assist her parents. The applicant is assisting her parents. Her parents do not drive and need her and her husband for assistance. Her father has paralysis as well. The applicant’s adviser has provided a submission to the Tribunal outlining the parent’s medical issues.

22. The Tribunal has no discretion in this instance.

23. 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.

24. At the request of the applicant’s advisor, the Tribunal gave the applicant additional time to provide further information to be referred to the Minister.  The applicant has provided further information for the Tribunal to refer to the Minister.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Lilly Mojsin
    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).