Piamonte (Migration) - [2024] AATA 4009

Piamonte (Migration) [2024] AATA 4009 (30 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Desyra Dale Macuto Piamonte
CASE NUMBER:  2004316
HOME AFFAIRS REFERENCE(S):          CLF2019/44980
MEMBER:Andrew McLean Williams
DATE:30 September 2024
PLACE OF DECISION:  Brisbane
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:
·clauses 835.212 and 835.221 of Schedule 2 to the Regulations.

Statement made on 04 October 2024 at 4:54pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – no near relatives other than those residing in Australia – no contact ever with biological father – informally adopted by Australian citizen step-father, who plays fully parental role – country information – child born out of wedlock regarded as having only one biological parent – applicant’s studies and care for grandmother in home country and studies and work in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04(1)(c), 1.15(1)(c), (2), Schedule 2, cl 835.212, 835.221
CASES
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v FCT (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 25 February 2020 thereby refusing to grant the Applicant Ms Desyra Dale Macuto Piamonte (hereinafter ‘Desyra’) an Other Family (Residence) (Class BU) visa, pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
Desyra is a 29-year old female Philippine citizen and is an only child.
Desyra applied for the visa on 24 October 2019. 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, Desyra is seeking to satisfy the criteria for the grant of a subclass 835 (ie: ‘remaining relative’) visa, which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
Relevantly, the primary criteria to be met for a Subclass 835 visa include clause 835.212. In broad terms this requires that the Applicant have no other ‘near relatives’ (being either a parent, brother, sister, step-brother, or step-sister), other than near relatives who now reside in Australia.
Desyra contends that she should be assessed as eligible for a subclass 835 visa on the basis that her mother and stepfather (who are each Australian citizens) have moved to Australia from the Philippines and she has no other relatives in the Philippines. Previously, and after her parents had relocated to Australia, Desyra had remained living with her maternal grandmother in the Philippines, however her grandmother has since passed away, thus leaving Desyra with no other near relatives in the Philippines.
The Delegate refused to grant the visa on the basis that clause 835.212 was allegedly not met by reason of the Delegate having concluded that Desyra still had a “near relative” - in the form of her biological father - somewhere in the Philippines. Desyra was born in 1995 out of wedlock, and her biological father had abandoned Desyra and her mother prior to Desyra’s birth. Desyra has never met her biological father, and has never had any contact with him whatsoever. Nor does Desyra even know how he might be contacted, given that such is prohibited under Article 280 of the Civil Code of Philippines.
Mr Robert Bruce Truloff, is now Desyra’s adoptive stepfather. Mr Truloff is an Australian citizen, who had originally met Desyra’s biological mother Mary Jane in Malaysia, when Mr Truloff happened to be working for a period in Malaysia as a telecommunications specialist. Mr Truloff formed a relationship with Mary Jane in Malaysia and subsequently followed her back to her home in the Philippines whereupon they entered into a de-facto relationship. This was in about 2009. At that time, Desyra was aged about 14-years. Thereafter Mr Truloff lived with Mary Jane and with Desyra, and Mr Truloff adopted Desyra as if she were his own daughter. There is amply-sufficient evidence before the Tribunal to comfortably demonstrate that Robert Truloff has willingly embraced the role as Desyra’s father, and that Mr Truloff has provided Desyra with all the financial, practical, and emotional support as may be expected of any father.
Desyra informed the Tribunal that Mr Truloff is the only father that she has known, and that she is forever grateful that Mr Truloff entered into her life and has so willingly embraced the role as her father figure.
Eventually, in 2013, Mr Truloff and Mary Jane were married. Robert and Mary Jane Truloff also decided to relocate back to Australia, where they have now permanently settled. Mary Jane has also become an Australian citizen.
At the stage of Robert and Mary Jane Truloff deciding to leave the Philippines and relocate to Australia, Desyra was a young woman at university, so she remained behind in order to complete her studies, and so as to act as a living companion for her maternal grandmother, with whom Desyra had always been very close.
Unfortunately, a few years later Desyra’s grandmother died, thus leaving Desyra all alone in the Philippines, without any other family support. Hence the reason for her relocating to Australia. Since her arrival in Australia, Desyra has undertaken further studies in early childhood education, and now works full-time as a child care worker and resides with her parents Mary Jane and Robert Truloff near Brisbane.
Desyra and her mother and father each appeared before the Tribunal on 26 September 2024 to give evidence and make submissions regarding Desyra’s entitlement for a subclass 835 visa.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the Desyra is the ‘remaining relative’ of her mother Mary Jane Truloff, who Desyra now claims for the purposes of this visa application as being her nominated ‘Australian relative’.
In this context ‘Australian relative’ means a ‘relative’ of the Applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: regulation 1.03. ‘Relative’ is also defined in regulation 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).
At the time of the visa application Desyra’s mother Mary Jane Truloff was an Australian permanent resident, however Mrs Truloff has since gone on to become an Australian citizen. On either account, Mary Ann Truloff qualifies as an ‘Australian relative’ for purposes of regulation 1.03.
Is the applicant a remaining relative of an Australian relative?
To be granted a Subclass 835 visa Desyra must be a ‘remaining relative’ of her nominated ‘Australian relative’ at time of application and must thereafter continue to be a ‘remaining relative’ at the time of decision: clauses 835.212 and 835.221. ‘Remaining relative’ is defined in regulation 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’.
There is ample evidence before the Tribunal to easily demonstrate that Desyra is the daughter of Mary-Jane Truloff who, as recorded previously, is an Australian citizen. The definitional requirements for a ‘remaining relative’ are therefore satisfied.
The Applicant - together with his or her spouse or where relevant, de facto partner - must also have no other ‘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: regulation 1.15(1)(a)
As the Australian relative in this case is the mother of the Applicant, regulation 1.15(1)(a) is met.
Whether the Australian relative is usually resident in Australia: regulation 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 regulation 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 or she ‘eats and sleeps and has his or her 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 regulation 1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.
As Desyra’s mother Mary Jane Truloff – as the nominated Australian relative - is usually resident in Australia, regulation 1.15(1)(b) is easily met in this instance.
‘No near relatives’: regulation 1.15(1)(c)
Regulation 1.15(1)(c) requires that the Applicant have no ‘near relatives’ except those that are usually resident in Australia, and who are Australian citizens, permanent residents or eligible New Zealand citizens.
‘Near relative’ for these purposes is defined in regulation 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.
The Delegate in the decision now under review had concluded that Desyra was unable to meet this particular requirement, by reason that somewhere in the Philippines there is a person who is the biological father of Desyra: even notwithstanding the fact of Desyra having not ever met this person; nor her having any knowledge of his whereabouts; and his name not being specified on her birth certificate. Despite these evident practical realities, the Delegate took an absurdist absolutist approach and determined that Desyra still has a remaining relative in the Philippines and is therefore ineligible for the visa.
In detailed written submissions – as prepared by Desyra in conjunction with her adoptive father Mr Robert Truloff - it is submitted that the Delegate had failed to come to grips with the fact of Desyra’s informal adoption in the Philippines by Mr Truloff, which ought be recognised as such pursuant to s.1.04(1)(c) of the Australian Immigration Regulations (1994); and the attendant fact that, pursuant to the Philippines Family Code and Domestic Adoption Act (1988), Desyra - as a child born out of wedlock - is regarded under Philippine Law as only having one biological parent (ie: her mother, Mary Jane). Similarly, it is submitted that pursuant to Australian family law the Philippines is recognised as a ‘prescribed’ overseas jurisdiction, for which there should be cooperation on family law and children’s matters, including as here, matters going to adoption and paternity.
During the Tribunal hearing, written and oral submissions were received in demonstration of the fact that Desyra had been informally adopted in the Philippines by Mr Truloff from 2009 onwards; and that this was an exceedingly common cultural practice in the Philippines, (a country in which 54.8% of the live births in 2019 were illegitimate); and is recognised as such under the provisions of the Republic of Philippines Domestic Adoption Act 1988.
Although the Tribunal ultimately agrees that the available evidence suggests that Desyra likely qualifies under Philippine domestic law as an informal adoptee of Mr Truloff, ultimately the determination of that particular issue become unnecessary for the Tribunal. Ultimately, the Tribunal need only be satisfied that Desyra holds the status as a person who is a relative of an Australian relative (here, her mother); and that there are no other remaining relatives for Desyra, beyond those now resident in Australia.
Pursuant to the Philippines Domestic Adoption Act 1998,[1] Desyra has the official legal status of an “unacknowledged illegitimate child” and is thus deemed as only ever having had one “biological parent”, being her mother Mary Jane. In these circumstances, and given that the Tribunal proceedings are conducted de novo, the Tribunal takes the view that as a matter of law Desyra is to be taken as only ever having had one parent, at least until such time as Mr Truloff became her adoptive father, in about 2009. Mr Truloff now resides in Australia, and his legal status as a putative adoptive parent does not bear upon the central question as to whether Desyra has any other remaining relatives other than those who are now resident in Australia.
[1] Article VIII, Section 24 of Republic Act 8552. See in particular Article II Section 3 (definition of “biological parents”)
Any theoretical ties that may be presumed between Desyra and her biological father have been extinguished by operation of Philippine law. In these circumstances it cannot be claimed for purposes of Regulation 1.15(c) that Desyra has any other near relative other than her near relatives who are usually resident in Australia and who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.
For these reasons, the Tribunal is satisfied there are no near relatives remaining in the Philippines other than those permitted by the regulations and therefore reg 1.15(1)(c) is met.
Adopted child: reg 1.15(1)(d)
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, reg 1.15(1)(d) requires that at the time of application the adoptive parent has been residing overseas for at least 12 months. As Desyra as the Applicant was already above the age of 18-years at the time of making the visa application this requirement does not apply.
For the reasons now set out above, the Tribunal is satisfied that the Applicant is the remaining relative of an Australian Relative both at the time of application and at the time of decision for the purposes of clauses 835.212, and 835.221.
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
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:
·clauses 835.212 and 835.221 of Schedule 2 to the Regulations.
Andrew McLean Williams
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).