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…

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 Mason (Migration)

Details

AGLC: Mason (Migration) [2022] AATA 1386
Case: [2022] AATA 1386
Decision Date: 26 April 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought this visa on the basis that she was the remaining relative of her Australian citizen sister. The decision was made by Maxina Martellotta, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an "Australian relative" under the Migration Regulations 1994. This involved determining if the applicant and the Australian resident were "sisters" for the purposes of the regulations, and whether the Australian resident was "usually resident in Australia." The Tribunal also needed to consider the applicant's familial circumstances, particularly the unknown identity and circumstances of her biological father, in relation to the definition of "near relatives."

The Tribunal reasoned that the definition of "sister" in the context of the regulations should be interpreted expansively, as supported by previous case law such as *Mercado v MIAC* and *Claridge v MIBP*, which allowed for half-siblings to be considered brothers or sisters. Based on the evidence of birth certificates and oral testimony, the Tribunal was satisfied that the applicant and the Australian resident were half-sisters, thus meeting the requirement of being a sister to an Australian relative. The Tribunal concluded that the application should be remitted for reconsideration, with a direction that the applicant met the criteria under cl 835.212 and cl 835.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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 MartellottaMemberATTACHMENT - 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 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 MartellottaMemberATTACHMENT - 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).