Norris (Migration)

[2020] AATA 1934

Norris (Migration) [2020] AATA 1934 (3 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Simone Deneille Norris

CASE NUMBER:  1728558

DIBP REFERENCE(S):  CLF2012/91012

MEMBER:P. Maishman

DATE:3 April 2020

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 03 April 2020 at 3:39pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – usual residence in Australia – no near relative – de facto relationship ceased – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 835.212, 835.221

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 Immigration on 2 November 2017 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 May 2012. 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.221.

3. The delegate refused to grant the visa on the basis that cl.835.221 was not met because the applicant’s partner’s brother, a near relative, was not usually resident in Australia and his stepmother could not be confirmed to be an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the remaining relative of Gregory Ivan Norris, 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: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

8. In this case Gregory Ivan Norris is the applicant’s parent and an Australian citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

9. 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.

10. 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’.

11. 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: r.1.15(1)(a)

12. The Department’s file contains a copy of the applicant’s birth certificate issued by the Department Home Affairs in the Republic of South Africa. Mr Gregory Ivan Norris is the father of the applicant.

13. As the Australian relative in this case is a parent of the applicant, r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.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 r.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 r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

15. The Tribunal obtained the details of the movement records of Mr Gregory Ivan Norris from the Department. The movement records show that, other than short absences from Australia, Mr Norris is an Australian citizen and is usually resident in Australia.

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

    No near relatives: r.1.15(1)(c)

17. 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.

18. ‘Near relative’ for these purposes is defined in r.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.

19. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate’s decision record summarises that on 14 March 2016 the applicant advised she had entered into a de facto relationship with Sebastian Zentaro Kavanagh. The delegate refused the visa as it could not confirm the Australian residence status of Mr Kavanagh’s stepmother and Departmental records indicated Mr Kavanagh’s brother was not usually resident in Australia.

20. The applicant gave the Department a letter on 1 December 2017 advising the Department her de facto relationship with Sebastian Zentaro Kavanagh had ceased.

21. At the time of application, the applicant listed her near relatives to be her father, Gregory Ivan Norris; her mother, Estelle Charmaine Norris; and her brothers, Kirk Earl Ivan Norris and Kerwin Kevin Ivan Norris. The applicant declared their residence to be in Australia and their immigration status to be permanent.

22. The applicant provided a statutory declaration signed on 3 April 2020 confirming she ceased to be in a spouse or de facto relationship on 20 September 2017. The applicant confirmed her near relatives to be those declared at the time of application and they continue to be usually resident in Australia and that they are Australian citizens.

23. The Tribunal accepts the applicant’s statutory declaration and finds the applicant’s near relatives are her father, Gregory Ivan Norris; her mother, Estelle Charmaine Norris; and her brothers, Kirk Earl Ivan Norris and Kerwin Kevin Ivan Norris; that each of those people are usually resident in Australia; and each of those people are Australian citizens.

24. For these reasons, the Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is met.

    Adopted child: r.1.15(1)(d)

25. 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, r.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.

26. 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.

27. 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

28. 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.

    P. Maishman
    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).