Mason (Migration) - [2022] AATA 1386

Mason (Migration) [2022] AATA 1386 (26 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Alexandra Olivia Mason
REPRESENTATIVE:  Mr John Nye (MARN: 0321646)
CASE NUMBER:  2009731
HOME AFFAIRS REFERENCE(S):          CLF2018/45272
MEMBER:Maxina Martellotta
DATE:26 April 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 26 April 2022 at 9:06am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – biological father whose identify and circumstances are unknown – physical residency and intention – no near relatives – parental responsibility in the United Kingdom – decision under review remitted
LEGISLATION
Family Law Act 1975, s 111CS
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 835.212, 835.221; r 1.15
CASES
Claridge v MIBP [2013] FCCA 1953
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Mercado v MIAC [2007] FMCA 1216
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 26 May 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 27 April 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
The delegate refused to grant the visa on the basis that cl 835.212 was not met because they concluded that the applicant had not demonstrated that she met the requirements of regulation 1.5(1)(c). Specifically they decided that because the applicant had a biological father whose identify and circumstances were unknown, this mean that the applicant could not demonstrate that this person was usually resident in Australia, or an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
The applicant appeared before the Tribunal on 29 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor and sister Mrs Fallows.
The Tribunal exercised its discretion to hold the hearing by video. 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the remaining relative of her sister, Michell Louise Fallows, 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).
In this case Mrs Fallows is the applicant’s sister [1]and she is an Australian citizen[2]. Mrs Fallows therefore is an Australian relative for these purposes.
[1] The applicant and Mrs Fallows have the same biological mother but different biological fathers. Mercado v MIAC [2007] FMCA 1216, suggests that an expansive approach to the word ‘brother’, as including a ‘half-brother’ is appropriate in the context of the Regulations. In that case, the Federal Magistrates Court agreed with the Tribunal that ‘brother’ in the definition of ‘overseas near relative’ in reg 1.15(2)(a) of the Regulations, included a ‘half-brother’. In Claridge v MIBP [2013] FCCA 1953 the Court noted that by inference the same reasoning set out in Mercado and in that decision would apply to the term ‘sister’ at [9].
[2] Date of citizenship is 26 January 2010.
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 reg 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’, except for 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)
In this matter the applicant and Mrs Fallows confirmed in their oral evidence that they are half-sisters. They share the same biological mother and have different biological fathers. This evidence was supported by copies of the applicants and Mrs Fallows birth certificates. The Tribunal is satisfied and finds that Mrs Fallows is the applicant’s sister.[3]
[3] Claridge v MIBP op. cit.
The Tribunal is satisfied and finds that the Australian relative in this case is the half-sister of the applicant, reg 1.15(1)(a) is met.
Whether the Australian relative is usually resident in Australia: reg 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 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.
Mrs Fallows confirmed in her evidence to the Tribunal that she has lived in Australia since 2005 and continues to live her to the present day with her husband and child. She is employed and has worked for the same organisation since 2007. 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 sister Mrs Fallows is usually resident in Australia
As the Australian relative is usually resident in Australia, reg 1.15(1)(b) is met.
No near relatives: reg 1.15(1)(c)
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.
‘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.
According to her application and consistent with her evidence at hearing, the applicant has the following near relatives:
a)Her mother Jacqueline Mason who is deceased. A copy of her death certificate was provided which confirms that Mrs Mason died on 29 January 2014.
b)Her sister Michelle Fallows who as found by the Tribunal resides in Australia.
The applicant told the Tribunal that she does not know who her biological father is. Her mother refused to ever reveal his identity and he is not named in her birth certificate. Her mother would not discuss the circumstances of her conception. The applicant has no information about that person and has no means of identifying him. She said that she did ask her mother, but her mother became very distressed and would not discuss it further. She was brought up by her mother.
The applicant provided a copy of her birth certificate which confirms that she was born on 18 November 1992. No details of the father are provided in the certificate.
Mrs Fallows’ evidence was as follows:
a)There is about 20 years age difference between herself and her sister (the applicant).
b)She has limited information about the circumstances of her sister’s conception as their mother refused to provide any information about who the applicant’s father was.
c)Her father and mother separated after less than a year together. Her mother subsequently married George Mason however that relationship also did not endure. Mr Mason died on 15 January 1989 prior to the birth of the applicant. A copy of his death certificate was provided to the Tribunal.
d)Their mother has in effect always been a single parent and apart from the above was never in a long-term relationship.
e)When she was in her 20’s her mother told her that she was pregnant. She was very taken aback at the news as her mother was not in a relationship with anyone and was in her 40’s. Her mother became very agitated and upset when asked about who the father was and would not provide any information and maintained that position throughout her life.
f)It is her genuine belief, that her mother herself did not know the identify of her sister’s father.
g)Due to the family circumstances she has played a very significant role in her sister’s life.
In this matter the applicant submits that in these circumstances, the person who is her biological father is not a parent for the purposes of the definition of a near relative in the context of the requirements in regulation 1.15(1)(c). The applicant’s representative made written submissions that:
a)As a matter of fact, the applicant does not and never has had a father.
b)United Kingdom (UK) Government policy relevant to birth certificates provides that prior to 1 July 2006 a relationship between a man and a child shall be only taken to exist between a man and a legitimate child born to him.
c)None of the presumptions of parentage as specified in the Family Law Act 1975 (Cth) (the Family Law Act) have application, namely:
·if a person’s name is entered as parent in a register of births (section 69R)
·if there is an express finding made by a Court (section 69S)
·if a man executes an instrument acknowledging he is the father of a specified child there is a presumption of paternity (section 69T)
In this matter the Tribunal assessed the evidence provided at hearing as cogent and credible. It is supported by documents provided by the applicant. The tribunal is satisfied and finds that:
a)The applicant’s father is not identified on her birth certificate.
b)The applicant’s mother has never revealed any information either to the applicant or to the applicant’s sister which would have allowed the applicant to identify who her biological father was.
The Tribunal is satisfied that the applicant does not know the identify of her biological father and has no knowledge of his circumstances. The question is whether in such circumstances such a person meets the definition of a parent?
Regulation 1.15(2)(a) does not define the term ‘parent’. For the purposes of section 5(1) of the Act, the term ‘parent’ is defined by reference to the non-exhaustive definition of ‘child’ in section 5CA of the Act. Amongst other things, this references the definition of ‘child’ under the Family Law Act.
The Family Law Act does not provide a standalone definition of ‘child’. Division 2 Part VII of the Family Law Act provides who has parental responsibility over a child.[4] Section 111CS of the Family Law Act sets out the applicable law concerning parental responsibility. Subsection 111CS (2) provides:
The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by operation of law (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child’s habitual residence.
[4] Section 61B
In this matter, the applicant is a national of the UK. As noted in the representative submissions, unmarried fathers in that jurisdiction do not have automatic parental responsibilities over a child. Section 2 of the Children Act 1989 (UK)[5] (the Children Act) provides that where a child’s father and mother were not married or civil partners at the time of the child’s birth then the mother has automatic parental responsibility, but the father only will acquire such responsibility if so acquired in accordance with the Act. Relevantly this is set out is section 4 of the Children Act and includes where the father; becomes registered as the child’s father and named on the birth certificate; is party to a parental responsibility agreement with the mother; or pursuant to a Court Order.
[5] accessed 25/4/2022
The Tribunal is satisfied that none of these provisions have application in this matter. On the evidence before it, the Tribunal finds that:
a) The applicant’s mother was not married or civil partners with the applicant’s biological father at the time of her birth.
b) The applicant’s biological father:
·has not become registered as her father and is not named on the birth certificate;
·is not party to a parental responsibility agreement and
·has not acquired parental responsibility pursuant to a Court Order.
The Tribunal concludes that the applicant’s biological father did not and does not not have any parental responsibilities to the applicant pursuant to UK law. For this reason the Tribunal concludes that the applicant’s biological father does not come within the definition of ‘parent’ for the purposes of regulation 1.15(2)(a).
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: r.1.15(1)(d)
If the applicant is a child who has not turned 18 and has been adopted by an Australian citizen, permanent resident or an eligible New Zealand Citizen, while overseas, r.1.15(1)(d) requires that at the time of application the adoptive parent has been residing overseas for at least 12 months. This requirement does not apply in this case.
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 the time of decision for the purposes of cl 835.212 and cl 835.221
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
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.
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).