O'Doherty (Migration) - [2018] AATA 1589

O'Doherty (Migration) [2018] AATA 1589 (10 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Deborah Jane O'Doherty
CASE NUMBER:  1715822
DIBP REFERENCE(S):  CLF2016/48121
MEMBER:Ann Brandon-Baker
DATE:10 April 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 10 April 2018 at 1:12pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – 835 (Remaining Relative) – Applicant has near relative(s) who is offshore

LEGISLATION
Migration Act 1958, s.1.15, 65
Migration Regulations 1994, Schedule 2, r.1.03. cl 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
Mercado v MIAC [2007] FMCA 1216
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 Immigration on 11 July 2017 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 August 2016. 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.835.212.
The delegate refused to grant the visa on the basis that cl.835.212 because the applicant has near relatives currently residing in and who are permanent residents of the United Kingdom.
The applicant and witnesses appeared before the Tribunal on 11 December 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The parties provide the Tribunal with a copy of the delegate’s decision along with their application for review.
The applicant is a citizen of the United Kingdom born on 30 August 1967 (50 years old). She is divorced and has no children. Her mother is an Australian permanent resident and her step father is an Australian citizen along with three step siblings, an Aunt and numerous cousins, nieces and nephews. She has two half-brothers who are citizens of and resident in the United Kingdom, along with a number of cousins and an Aunt. She has travelled in and out of Australia since 1980 and last entered on 10 December 2014 on a student visa which ceased on 24 August 2016. She lodged the application for the visa subject to this review on 12 August 2016.
The delegate refused the visa on the basis that the applicant has two…

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 O'Doherty (Migration)

Details

AGLC: O'Doherty (Migration) [2018] AATA 1589
Case: [2018] AATA 1589
Decision Date: 10 April 2018

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, a citizen of the United Kingdom, sought review of a delegate's decision to refuse her visa application. The delegate's refusal was based on the applicant having two near relatives, her half-brothers, who were ordinarily resident in the United Kingdom. The applicant contended that her half-brothers were not "near relatives" for the purposes of the visa criteria, and that her only near relatives were her mother, stepfather, and step-siblings, all of whom were ordinarily resident in Australia and held Australian permanent resident or citizen status. The decision was heard by Senior Member Ann Brandon-Baker of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant qualified as a "remaining relative" under regulation 1.15 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant, and her spouse or de facto partner (if any), had no "near relatives" other than those who were ordinarily resident in Australia and were Australian citizens, Australian permanent residents, or eligible New Zealand citizens. Central to this determination was the interpretation of the term "near relative" as defined in regulation 1.15(2), and whether "half-brother" fell within that definition.

The Tribunal reasoned that the definition of "near relative" in regulation 1.15(2)(a) explicitly includes a "brother" and a "step-brother". The applicant argued that "half-brother" was not specifically mentioned and therefore should not be included. However, the Tribunal found that the applicant's half-brothers were indeed her brothers, and that the definition of "near relative" encompassed brothers. Consequently, the applicant had near relatives (her half-brothers) who were not ordinarily resident in Australia and were not Australian citizens or permanent residents. This meant the applicant did not satisfy the criterion that she and her spouse or de facto partner have no near relatives other than those who are ordinarily resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal affirmed the delegate's decision not to grant the applicant the Subclass 835 visa. The Tribunal found that the applicant did not meet the prescribed criteria for the visa sought.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The parties provide the Tribunal with a copy of the delegate’s decision along with their application for review. The applicant is a citizen of the United Kingdom born on 30 August 1967 (50 years old). She is divorced and has no children. Her mother is an Australian permanent resident and her step father is an Australian citizen along with three step siblings, an Aunt and numerous cousins, nieces and nephews. She has two half-brothers who are citizens of and resident in the United Kingdom, along with a number of cousins and an Aunt. She has travelled in and out of Australia since 1980 and last entered on 10 December 2014 on a student visa which ceased on 24 August 2016. She lodged the application for the visa subject to this review on 12 August 2016. The delegate refused the visa on the basis that the applicant has two near relatives, being her half-brothers currently residing in and who are permanent residents of, the United Kingdom. Prior to the Tribunal hearing the applicant provided the Tribunal with a number of documents, including:a.Statement by Alexander Jamieson, the applicant’s step father stating that he and the applicant’s mother have significant medical problems which require the daily help and assistance of the applicant.b.Medical documents relating to the health problems of Mr Jamieson and the applicant’s motherc.Personal statement from the applicant’s mother setting out how much she needs the applicant to remain in Australiad.A significant number of personal statements from the applicant’s step siblings, other relatives, her employer, TAFE Queensland, close friends and others, setting out how much the applicant helps both her mother and Mr Jamieson and urging the Tribunal to allow the applicant to remain in Australia.e.A petition from 20 of the applicant’s work colleagues urging the Tribunal to allow the applicant to stay in Australia The applicant also provided a personal statement stating that her mother moved to Australia in 1987 (when she was 20 years old) and married Mr Jamieson in 1989. She states that she lived with her grandparents when her mother moved to Australia. She states that he biological father remarried in around 1992 and had two sons, her half-brothers. The applicant stated she was married from 2000 to 2007 at which time she departed the UK to live and work overseas. She claims she only met her half-brothers when they were aged 5 and 2 years and has not seen them or had any contact with them since that time. The applicant, through her representative submits that the definitions of ‘near’ and ‘remaining’ relative in s.1.15 make no reference to “half-brother” and hence the applicant has no near or remaining relatives in the UK. The applicant submits that her only near and remaining relatives are therefore her step siblings, step parents and mother who are all either Australian permanent residents or Australian citizens.CONSIDERATION OF CLAIMS AND EVIDENCE

Evidence

Evidence Before The Court

The applicant, through her representative submits that the definitions of ‘near’ and ‘remaining’ relative in s.1.15 make no reference to “half-brother” and hence the applicant has no near or remaining relatives in the UK. The applicant submits that her only near and remaining relatives are therefore her step siblings, step parents and mother who are all either Australian permanent residents or Australian citizens.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the remaining relative of Monica Jamieson, 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). In this case, Monica Jamieson is the applicant’s mother and Australian permanent resident and 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 r.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: r.1.15(1)(a) As the Australian relative in this case is the mother of the applicant, r.1.15(1)(a) is met. Whether the Australian relative is usually resident in Australia: r.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 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.A B BakerSenior MemberATTACHMENT - 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.A B BakerSenior MemberATTACHMENT - 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).