Mutara (Migration)

[2021] AATA 3788

Mutara (Migration) [2021] AATA 3788 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Faustine Mutara

CASE NUMBER:  2004141

HOME AFFAIRS REFERENCE(S):          CLF2019/27322

MEMBER:Steven Griffiths

DATE:9 September 2021

PLACE OF DECISION:  Adelaide

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; and

·cl 835.221 of Schedule 2 to the Regulations.

Statement made on 09 September 2021 at 11:49am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – location of the applicant’s father declared unknown – father now holds Resident Return 155 Visa – Australian relative usually resident in Australia – maternal responsibility within the family – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.212, 835.221; rr 1.03, 1.15

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 Home Affairs on 19 February 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).

2. The applicant, Miss Faustine Mutara, applied for the visa on 25 June 2019 on the basis of her relationship with the sponsor, Ms. Malice Furaha Mboneye. 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.

3. The delegate refused to grant the visa on the basis that cl 835.212 was not met because the location of the father of the applicant was declared as unknown.  

4. The applicant appeared before the Tribunal on 9 September 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from Ms. Aline Mboneye, a sister of the applicant, while noting that 3 other sisters of the applicant were available to provide oral evidence personally to the hearing, while the sponsor was unable to attend the hearing personally but was available to provide evidence by telephone if required. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

6. 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.

7. 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’.

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Applicant Ms. Mutara was born in Republic of Congo in 1979. Her father, born 1950, is currently in Tanzania, while her mother died in 2017. She is the oldest child in the family, and had 9 sisters and 2 brothers, with one of the sisters dying in 2018, with the other siblings all living in Australia, as had her deceased mother and sister before their passing.  She first visited Australia in 2005, and in total made 11 trips before her last arrival, on 29/3/19, when she arrived on a E Visitor 651 Visa. She was granted a Bridging Visa WA-010 on 25/6/19.

10. Sponsor Ms. Mboneye was born in Republic of Congo in 1990 and is a sister of the applicant. She, with her mother and 8 of her 9 siblings, came to Australia in 2004 and she is an Australian citizen by grant.

11. The visa application was made on the basis that the applicant is the remaining relative of Ms. Malice Furaha Mboneye, 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).

12. In this case Ms. Malice Furaha Mboneye is the applicant’s sister and an Australian citizen by grant and therefore is an Australian relative for these purposes.

    The delegate’s decision

13. The delegate referred to the documented evidence provided by the applicant on 11 February 2020 in which the residential address of the father of the applicant, Ms. Elias Nziko Mboneye, was noted as “unknown”.  

14. The delegate determined that in the absence of any information from the applicant in regard to the address or country of residence, the father was taken to be usually resident outside of Australia.

    Evidence at hearing

15. The Tribunal accepts the oral evidence of the applicant that her father has residential rights to live in Australia, but is currently in Tanzania, after having spent some time in Burundi.

16. The Tribunal accepts the documented evidence, dated June 2020, presented by the applicant to the hearing of her father holding an Australian Resident Return 155 Visa.

17. The Tribunal accepts the oral evidence of the applicant that in her information to the Department of 11 February 2020 she noted that her father was “unknown” as he was not in Australia living with family members at the time and she did not want to provide any information that was not correct.

18. The Tribunal accepts the oral evidence of the applicant that her father was in Australia at the time of the death of his wife in 2017, was overseas for portions of 2018 including when the sister of the applicant passed away, but has been in Australia since and has been actively seeking to return to Australia for 18 months but has not been able to travel.

19. The Tribunal accepts the supporting oral evidence provided by the 4 sisters of the applicant who attended the hearing on the whereabouts, movements, contacts with and desire of their father to return to Australia to live as he is legally entitled.

    Is the applicant a remaining relative of an Australian relative?

20. 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.

21. 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’.

22. 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)

23. The Tribunal accepts the documented and oral evidence of the parties and witnesses that the applicant is the oldest sibling of 12 in the family, with the sponsor being the sister of the applicant.

24. 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)

25. 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.

26. The Tribunal accepts the documented and oral evidence of the parties that the sponsor, with her mother, 8 sisters and 2 brothers, arrived in Australia in March 2005, is an Australian citizen by grant and while she spent some time out of Australia with family members at particular celebrations, she is a resident of Australia.

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

    No near relatives: reg 1.15(1)(c)

28. 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.

29. ‘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.

30. The Tribunal accepts the documented and oral evidence of the applicant and witnesses that the only relatives they have are those who have permission to live in Australia.

31. The Tribunal accepts the oral evidence of the applicant and witnesses that their father was separated from his wife and children due to war in their home country, and while the mother and all 12 children travelled to Australia in 2005, their father was not located until years later and he first entered Australia in August 2012.

32. The Tribunal accepts the oral evidence of the applicant and witnesses that their father has left Australia to be in Burundi and Tanzania several times, but he is committed to being a resident of Australia and will be returning to Australia and the family as soon as travel options are available to him.

33. The Tribunal accepts the documented and oral evidence of the applicant and witnesses that all remaining 10 siblings of the applicant live, with their partners and children, in Australia.

34. The Tribunal accepts the documented and oral evidence of the applicant and witnesses that their mother passed away in 2017 and the applicant, as the oldest sibling of the family, felt it her responsibility to move from Belgium, where she had lived since 2004, to Australia to take on the required maternal responsibility role within the family.

35. The Tribunal accepts the documented and oral evidence of the applicant and witnesses that a sister, who had a young child, passed away in 2018 and this death further required the applicant to take on a maternal responsibility role within the family.

36. The Tribunal accepts the documented and oral evidence of the applicant that she first visited Australia in 2005 to be with her family and when she arrived in last on 29 March 2019 this was her 11^th trip over 14 years.

37. The Tribunal accepts the documented evidence that the siblings of the applicant were born between 1980 and 1996 and are Australian citizens by grant.

38. 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: reg 1.15(1)(d)

39. 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.

40. 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.

41. 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

42. 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; and

    ·cl 835.221 of Schedule 2 to the Regulations

    Steven Griffiths
    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).