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…

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 Piamonte (Migration)

Details

AGLC: Piamonte (Migration) [2024] AATA 4009
Case: [2024] AATA 4009
Decision Date: 30 September 2024

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), made by Desyra against the decision of the Tribunal. Desyra sought to nominate her mother, Mary Jane Truloff, as her Australian relative. At the time of the application, Mrs Truloff was an Australian permanent resident, and has since become an Australian citizen, thus qualifying as an Australian relative for the purposes of the visa.

The primary legal issues before the Tribunal were whether Desyra qualified as a "remaining relative" of her Australian relative, Mary Jane Truloff, as defined by regulation 1.15 of the Migration Regulations 1994. This required determining if Mrs Truloff was a parent of Desyra, if Mrs Truloff was usually resident in Australia, and if Desyra, along with her spouse or de facto partner, had no near relatives other than those usually resident in Australia and who were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal found that Desyra met the definitional requirements for a "remaining relative" under regulation 1.15, specifically that Mrs Truloff was her parent and was usually resident in Australia. The Tribunal applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* to interpret "usually resident," which involves considering both physical residency and intention, referencing the settled abode test from *Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation*. The Tribunal concluded that the applicant met the criteria under clauses 835.212 and 835.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant meets the specified criteria for a Subclass 835 (Remaining Relative) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 WilliamsMemberATTACHMENT - 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 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 WilliamsMemberATTACHMENT - 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).