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

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).
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.
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.
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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
To be granted a Subclass 835 visa the applicant must…

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 Mutara (Migration)

Details

AGLC: Mutara (Migration) [2021] AATA 3788
Case: [2021] AATA 3788
Decision Date: 9 September 2021

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 to establish that she was a remaining relative of an Australian relative. The delegate had previously determined that the applicant's father, who was the Australian relative in question, was usually resident outside of Australia, based on the applicant's statement that his location was "unknown" at the time of application. The decision under review was made by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for being a "remaining relative" of an "Australian relative" as defined by the Migration Regulations 1994. This involved determining if the Australian relative (the applicant's father) was "usually resident in Australia" and if the applicant had no "near relatives" other than those usually resident in Australia and who were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal accepted the oral and documentary evidence presented by the applicant and her sisters. This evidence established that the applicant's father held an Australian Resident Return 155 Visa, had been in Australia at certain times, and had expressed a strong desire to return to Australia to live. The Tribunal found that the applicant's earlier statement of her father's location being "unknown" was due to his absence from Australia at that specific time and her desire to provide accurate information. Applying the principles from cases such as *Scargill v MIMIA* and *MIMIA v Hidalgo*, the Tribunal considered both physical residency and intention in assessing "usual residence." Based on the evidence, the Tribunal concluded that the applicant met the criteria under cl 835.212 and cl 835.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the necessary criteria for the Subclass 835 (Remaining Relative) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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. 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. 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? 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) 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. 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.

Decision

Reasons for decision

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 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”. 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 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. 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. 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. 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. 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? 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) 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.

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; and·cl 835.221 of Schedule 2 to the RegulationsSteven GriffithsMemberATTACHMENT - 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).