Mortlock (Migration)

[2022] AATA 2271

Mortlock (Migration) [2022] AATA 2271 (17 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lee Michael Mortlock

REPRESENTATIVE:  Mr Lester Ong

CASE NUMBER:  2100593

HOME AFFAIRS REFERENCE(S):          CLF2010/50831

MEMBER:Maxina Martellotta

DATE:17 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 17 May 2022 at 4:13pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – at the time of decision the applicant has a near relative who is not usually resident in Australia – applicant’s sister is not usually resident in Australia – referred the Minister for consideration – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359

Migration Regulations 1994, rr 1.03,1.15, Schedule 2, cl 835.212

CASES
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
Ignatious v MIMIA [2004] FCA 1395

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 13 January 2021 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 12 April 2010. 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). Relevant to this matter, the primary criteria to be met include cl 835.212 and cl 835.221

3. The delegate refused to grant the visa on the basis that cl 835.221 was not met because at the time of decision the applicant has a near relative who is not usually resident in Australia.

4. The applicant appeared before the Tribunal on 22 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s parents, Mr Michael Mortlock and Mrs Shirley Mortlock, his sister and sponsor Mrs Neill and his nephew Mr Michael Duxbury.

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

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the remaining relative of Mrs Neill 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).

9. In this case Mrs Neill is the applicant’s sister and an Australian citizen this confirmed by documents provided in support of the applicants’ visa application. Therefore Mrs Neill therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

10. 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.

11. 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’.

12. 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)

13. In this case the applicant’s sponsor is his sister Mrs Neill  who is an Australian citizen. As the Australian relative in this case is the 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)

14. 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.

15. In this case the applicant’s sponsor and sister is a person who lives in Australia with her husband and has two children all of whom are Australian citizens. The Tribunal is satisfied that Mrs Neill is an Australian relative usually resident in Australia. This means reg. 1.15(1)(b) is met.

    No near relatives: reg 1.15(1)(c)

16. 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.

17. ‘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.

18. The tribunal is satisfied and finds that the applicant has the following near relatives:

    ·His mother, Shirley Mortlock who is an Australian citizen living in Australia

    ·His father, Michael Franck Morlock who is an Australian citizen living in Australia

    ·His sister Lisa Jayne Neill who is an Australian citizen living in Australia

    ·His sister Lesley Karen Duxbury who is an Australian citizen living the United Kingdom.

19. The evidence before the Tribunal confirms that the applicant’s mother, father and sponsor (Mrs Neill) are usually resident in Australia. In reaching this conclusion the Tribunal notes the following evidence:

    a)The sponsor Mrs Neill, as noted is an Australian citizen who has lived in Australia since migrating to Australia. She resides in Australia with her husband and two children all of whom are also Australian citizens.

    b)The parents have lived in Australia since 2010 and they were granted Contributory Parent visas and are now Australian citizens. They sold all their assets and property in the United Kingdom in order to move to Australia.  They live here in a property with their son the applicant.

20. In this matter, it is not in contention that the applicant has a near relative, namely his sister Mrs Duxbury who is not living in Australia.  At hearing the applicant and other witnesses confirmed that:

    a)Mrs Duxbury is an Australian citizen (since 12 June 2012). She lived in Australia with her husband and family until 2016.

    b)Mrs Duxbury and her husband returned to live in the United Kingdom in early 2016 and since that time has not returned to live in Australia.

    c)Mrs Duxbury’s husband was made redundant from his Australian employment. On a holiday back to the United Kingdom he was offered a position with his former employer.  On that basis Mrs Duxbury and her husband decided to return to live in the United Kingdom.

    d)They have returned to live in a property which they own in the United Kingdom and both are working there on a full-time basis.  Mrs Duxbury has returned to Australia for visits.

    e)Mrs Duxbury has not indicated any definite intention to members of her family return to live in Australia.

    f)Mrs Duxbury’s decision to return to live in the United Kingdom has caused a rift in the family because of the potential impact this may have on the applicant’s visa application.

    g)Mrs Duxbury has contact with family members from time to time which in recent times has been in relation to receiving progress reports about her brother’s visa application. Witnesses, including the applicant, the sponsor and his parents spoke about limited contact with Mrs Duxbury caused in part by her decision to return to the United Kingdom.

    h)Mrs Duxbury’s son, Michael Duxbury has more regular contact with his mother and father - usually weekly contact with his mother. He says that his mother is planning a visit to Australia toward the end of the year also given that he has recently become engaged to be married.

    i)Michael Duxbury told the Tribunal that his parents sold their assets and property in Australia to fund their return to the United Kingdom. Both his parents are working and living in the United Kingdom.

21. In this case, the Tribunal is satisfied that the Mrs Duxbury is a near relative of the applicant.  The Tribunal is satisfied that at the time of the applicant’s visa application, Mrs Duxbury was usually resident in Australia.  The question is whether she is usually resident in Australia 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].

22. Submissions were made on the applicant’s behalf by his representative which stated that despite the above circumstances the following factors support a conclusion that the applicant’s sister Mrs Duxbury is usually resident in Australia:

    a)Mrs Duxbury in correspondence with the Department stated an intention to return to Australia.

    b)She has continued family ties to Australia.

    c)She and her husband have maintained a bank account and superannuation fund in Australia.

23. With respect to the above submissions the Tribunal notes that:

    a)In response to a request for information made by the Department, Mrs Duxbury provided a statement (undated) in which she advised that she is presently residing in the United Kingdome, and her intention is to return to Australia and join the family as her son resides in Australia. She has strong family ties with Australia.

    b)In the Tribunal’s view the evidence provided at hearing whilst confirming that Mrs Duxbury has family ties to Australia, also demonstrated that there has been a rift in the family relationship with Mrs Duxbury (particularly her parents) due to her decision to return to the United Kingdom.  It was also apparent from the evidence at hearing that Mrs Duxbury does not have any immediate or future plans to return to live in Australia.

    c)In terms of her financial connections to Australia, the Tribunal notes that the evidence in support of this consisted of a bank statement in the joint names of Mrs Duxbury and her husband showing a closing balance as of 31 March 2022 of $137.26. Also a superannuation statement for Mrs Duxbury showing a balance of $56,004.16. That statement shows that Mrs Duxbury did not make any contributions to her superannuation account for the reporting period 1 July 2020 to 30 June 2021.

24. As noted, the question of where a person is usually resident, is a question of fact and degree with key considerations relating to physical residence and intention.[2] Authorities have provided guidance as to factors relevant to determining whether a person is usually resident in a particular place. This includes factors such as whether the person maintains a home in that place, goes to work there, owns property, business or other interests there, has any family ties and their views about the place they consider as their home.

    [2] Ibid.

25. On the presented evidence the Tribunal finds that:

    a)Mrs Duxbury has not lived in Australia since returning to the United Kingdom with her husband in 2016.

    b)Mrs Duxbury and her husband are employed full time in the United Kingdom.

    c)Mrs Duxbury owns and maintains a property in the United Kingdom where she lives.

    d)Mrs Duxbury does not own or maintain a property in Australia.

    e)Although Mrs Duxbury made a written statement to the Department that it was her intention to return to Australia, since then she has not indicated any definite intention to return to live in Australia to members of her family.

    f)Mrs Duxbury has family ties to Australia.

    g)Mrs Duxbury’s decision to return to the United Kingdom has caused a rift with some members of her family.

    h)Mrs Duxbury and her husband have an Australian bank account showing a closing balance as of 31 March 2022 of $137.26. Mrs Duxbury Australian superannuation account has a balance of $56,004.16. Mrs Duxbury did not make any contributions to her superannuation account for the reporting period 1 July 2020 to 30 June 2021.

26. In this matter, based upon its findings of fact, the Tribunal does not agree with the submission that the factors identified by the applicant’s representative support the conclusion that Mrs Duxbury is usually resident in Australia.  The reasons for these include the following:

    a)Clearly there has been a change in Mrs Duxbury’s circumstances since the visa application was lodged as evidenced by her and her husband’s decision in 2016, to sell their assets and property in Australia in order to return to live and work in the United Kingdom. 

    b)Whilst Mrs Duxbury has family connections, the evidence at hearing was that the relationship with some members of the family have been negatively impacted by that decision and that Mrs Duxbury’s most regular contact is with her son.

    c)Mrs Duxbury has nominal assets in the Australia in the form of a bank account and superannuation fund to which she has not made any contributions for at least the last financial year. By comparison, the evidence at hearing was that Mrs Duxbury and her husband sold their home and assets in Australia and have returned to their former home in the United Kingdom. 

    d)Mrs Duxbury and her husband work and maintain a home in the United Kingdom.  The evidence of family members is that despite her initial response to the Department (at the time that they were assessing the visa application) that she was intending to return, Mrs Duxbury has not since  expressed any intention to return to  reside Australia apart from undertaking some visits.

27. As noted, 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. This is because his sister Mrs Duxbury for the reasons identified by the Tribunal is not usually resident in Australia. As noted, whilst she has family ties, since leaving in 2016, Mrs Duxbury no longer is physically present in Australia, she does not live in and maintain a home here, she does not work here. She holds some nominal assets here. She has not expressed any clear intention to return to live in Australia. The Tribunal is not satisfied that this criterion is met by the applicant.

    Adopted child: reg 1.15(1)(d)

28. 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, reg 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.

29. For the reasons set out above, the Tribunal not satisfied that the applicant is the remaining relative of an Australian Relative at the time of decision for the purposes of cl 835.221.

30. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there were no submissions made and no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. There is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl.836.212, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

31. 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.

32. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

33. In support, the applicant’s representative provided detailed written submissions stating:

    a)If the applicant is required to return to the United Kingdom it would cause serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or Australian family unit.

    b)The applicant and his nephew operate a business which provides economic benefit. The business has an excellent reputation and provides employment for the applicant and his nephew who is an Australia citizen.  The applicant is an integral part of the business.

    c)There are letters of support from community members attesting to the applicant’s positive contribution to the community.

    d)There are compassionate factors given the applicants age, his connection to Australia and that it has been his home for the last 12 years, requiring him to leave would cause him irreversible harm and hardship and also to his parents.

    e)There are unintended consequences of legislation leading to unfair or unreasonable results.

    f)The applicant and his family have a legitimate expectation to remain together given Australia is a signatory to the International Covenant on Civil and Political Rights.

34. In support of this request the following evidence was provided by the applicant and family members:

    a)The applicant is not in a relationship and has no children.

    b)He has for his adult life lived with his parents in the same household.

    c)He is the only member of his family who is not an Australian citizen and has extremely close relationships with members of his family who apart from his sister Mrs Duxbury all live in Australia.

    d)He provides care and support to his elderly parents who are dependent upon him for financial and practical care and support.  His father suffers from health issues and is vulnerable.

    e)If required to return to the United Kingdom his parents would have to go back with him. They have nothing to return to in that country.  The applicant and his parents have no property or financial resources in the United Kingdom as they sold everything including a family business to come to Australia.

    f)The applicant arrived in Australia with his parents in January 2010 to join his siblings and their family.

    g)The applicant made his visa application in April 2010. He has had working rights since October 2010.

    h)His sister’s decision to return to live in the United Kingdom was unexpected and outside of his control.

    i)The applicant’s nephew Michael Duxbury has a close relationship with his uncle, and they are also business partners in a small business. If his uncle were required to return to the United Kingdom, it would have detrimental impact upon the business and his nephew’s  financial circumstances.

1. The Tribunal was presented with credible and compelling testimony from the applicant and his family in support of the request that this case be referred the Minister for consideration.

2. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

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

   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).