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

1. 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).

2. 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.

3. 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.

4. The applicant and witnesses appeared before the Tribunal on 11 December 2017 to give evidence and present arguments.

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 decision under review should be affirmed.

   BACKGROUND

7. The parties provide the Tribunal with a copy of the delegate’s decision along with their application for review.

8. 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.

9. 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.

10. 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 mother

    c.Personal statement from the applicant’s mother setting out how much she needs the applicant to remain in Australia

    d.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

11. 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.

12. 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.

13. 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

14. 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).

15. 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?

16. 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.

17. 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’.

18. 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)

19. 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)

20. 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.

21. Ms Jamieson has been usually resident in Australia since 1989, therefore r.1.15(1)(b) is met.

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

22. 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.

23. ‘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.

24. 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. The Tribunal finds this argument misunderstands the meaning of the term “brother” in the Migration Act and Regulations.

25. In Mercado v MIAC [2007] FMCA 1216 (Lloyd-Jones FM, 26 July 2007), the Federal Magistrates Court found that the reference to ‘brother’ (albeit in the previous version of r.1.15) included a reference to a ‘half-brother’. By inference, the reference to ‘sister’ may also be taken to include a reference to a ‘half-sister’. In the same case, his Honour made obiter comments contrasting the blood relationship with the more ‘transient’ ‘step’ relationship recognised in r.1.15. These comments suggest that a ‘step’ relationship may cease upon the cessation of the relevant spouse relationship that gave rise to it.

26. The Tribunal notes that the applicant has claimed that she has not seen her half-brothers since they were aged 5 and 2 years and has not been in contact with them. She has told the Tribunal that she has no desire to meet with them or get to know them. She says that she does not consider them to be related to her in any way.

27. The Tribunal also notes, however, that the definition of remaining relative does not require or even allow consideration of subjective matters such as the quality of familial relationships. A living near relative must be taken into account for the purposes of assessing regulation 1.15. The applicant was asked if she had any reason to believe either of her half-brothers were deceased and she said that she did not know. The Tribunal agreed to give the applicant some time to undertake those enquiries.

28. On 3 April 2018 the applicant through her representative informed the Tribunal that the applicant had undertaken a number of enquiries through the International Red Cross in an attempt to locate her half-brothers without success. The Red Cross informed the applicant that they were unable to accept the search because she was unable to provide them with sufficient details of her half-brothers. As such, the Tribunal cannot be satisfied that the applicant has no near relatives residing overseas.

29. 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.

30. 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 or at the time of decision for the purposes of cl.835.212 or cl.835.221.

    CONCLUSION

31. 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

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

    A B Baker
    Senior 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).