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

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).
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
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.
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.
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.
The applicant was represented in relation to…

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 Mortlock (Migration)

Details

AGLC: Mortlock (Migration) [2022] AATA 2271
Case: [2022] AATA 2271
Decision Date: 17 May 2022

CaseChat Overview and Summary

The applicant sought an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative visa). The decision under review was made by the Minister, and the applicant's case was referred for consideration. The Tribunal, presided over by Maxina Martellotta, was tasked with determining whether the applicant met the criteria for this visa subclass.

The primary legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an "Australian relative" at the time of application and continued to do so at the time of the decision, as required by clauses 835.212 and 835.221 of the Migration Regulations 1994. This involved interpreting the definitions of "Australian relative" and "remaining relative" as set out in regulations 1.03 and 1.15 respectively, and assessing whether the applicant's sister, Mrs Neill, met the criteria of being an Australian citizen and "usually resident in Australia."

The Tribunal reasoned that Mrs Neill, being the applicant's sister and an Australian citizen, satisfied the requirement of being an "Australian relative." Furthermore, applying the principles established in cases such as *Scargill v MIMIA* and *MIMIA v Hidalgo*, the Tribunal found that Mrs Neill was "usually resident in Australia," considering both her physical presence and intention to reside there, as evidenced by her living in Australia with her husband and two Australian citizen children. The Tribunal also considered the definition of "near relative" under regulation 1.15(2), though the specific outcome regarding this limb was not detailed in the provided text.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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? 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’, 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) 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) 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. 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)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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