NSAMA (Migration)

[2019] AATA 2872

NSAMA (Migration) [2019] AATA 2872 (15 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  REBECCA NSAMA

CASE NUMBER:  1817994

HOME AFFAIRS REFERENCE:                CLF2017/45916

MEMBER:Lilly Mojsin

DATE:15 March 2019

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 15 MARCH 2019 AT 3:53PM

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – near relatives offshore – applicant has siblings residing in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 835.212, 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
Scargill v MIMIA [2003] FCAFC 116
MIMIA v Hidalgo [2005] FCAFC 192

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 11 June 2018 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 27 June 2017.

3. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present review, 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).

4. The delegate found that cl.835.212 and cl.835.221 was not met because the applicant, has  4 brothers and 2 sisters who are her near relatives and are not Australian citizens, Australian permanent residents or eligible New Zealand citizens.

5. The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of Joyce Musonda Nsama Simwanza, who the applicant claims is her 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).

7. In this review Joyce Musonda Nsama Simwanza is the applicant’s sister who is an Australian permanent resident and therefore is an Australian relative for these purposes.

8. 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.

9. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

10. 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. The requirement to be a parent or sibling: r.1.15(1)(a)

11. As the Australian relative in this review is the sister of the applicant, r.1.15(1)(a) is met.

12. 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.

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

14. 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.

15. ‘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-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner.

16. In response to a 359A letter, the applicant’s sister responded that

    “Whilst it is true that my young sister has other siblings still residing in Zambia, Rebecca has always been in my care since the passing of our mother in 1997, who died of cervical cancer when Rebecca was just 5 years old. And was only 2 years old when our father died. My young sister relies on me for emotional support as her elder sister and only closest relative. As siblings Rebecca and I have gone through a lot of life challenges but we always look out for each other”.

17. The applicant advises that she is dependant on her Australian sister since her mother died when she was 5 years of age. She claims that she was raped as a young girl and her son’s father has threatened her again as she refused to have any relationship with him as he is irresponsible. Whilst the Tribunal is sympathetic to fact the applicant and her sister are close and the applicant had a difficult time growing up, and her son’s father left her after the birth and continues to threaten her, the Tribunal has no discretion in this matter.

18. The Tribunal finds that the applicant has 4 brothers and 2 sisters. Brother – Rex Kafimbwa Nsama, Brother -  Fredrick Chibawa Nsama, Brother -  Julius Manda Nsama, Sister - Lucy Mwenya Nsama, Sister – Sharon Chipili Nsama, Brother – Patrick Chola Nsama. They all reside in Zambia and are not Australian citizens, Australian permanent residents or eligible New Zealand citizens.  

19. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

20. For the reasons set out above, the Tribunal is not 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.

21. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

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

    Lilly Mojsin
    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).