Rabenitas (Migration)

[2021] AATA 3947

Rabenitas (Migration) [2021] AATA 3947 (13 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonathan Rabenitas

CASE NUMBER:  2008924

HOME AFFAIRS REFERENCE(S):          CLF2010/117115

MEMBER:Moira Brophy

DATE:13 October 2021

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 13 October 2021 at 10:16am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – no near relatives except those resident in Australia – applicant married after making application – members of wife’s family living in home country – relatives of spouse included in definition of near relative – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 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 Federal Commissioner of Taxation (1941) 64 CLR 241
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 Home Affairs on 19 May 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 September 2010. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.212.

3. The delegate refused to grant the visas on the basis that cl.835.212 was not met because the delegate found the visa applicant had married since the time of application and he was no longer the remaining relative of an Australian citizen because members of his wife’s family were living in the Philippines.

4. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by way of video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant, Mr Jonathon Rabenitas appeared before the Tribunal by way of a video conference on 8 October 2021 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the remaining relative of Mr Jesus Murallos, 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: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

8. In this case Mr Jesus Murallos is the applicant’s father and he is an Australia citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

9. 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 reg 1.15 of the Regulations, which is set out in the attachment to this decision.

10. 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’.

11. 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: reg 1.15(1)(a)

12. The applicant provided a certified copy of his birth certificate at the time of application. The Tribunal is satisfied Mr Jesus Murallos, an Australian citizen is the father of the applicant Mr Jonathon Alviar Rabenitas. As the Australian relative in this case is the father of the applicant, reg 1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b)

13. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of reg 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 reg 1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

14. The Tribunal is satisfied from the oral evidence given at the time of hearing Mr Jesus Murallos resides in a home he rents and that is his primary place of residence. As the Australian relative is usually resident in Australia, reg 1.15(1)(b) is met.

    No near relatives: reg 1.15(1)(c)

15. 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.

16. ‘Near relative’ for these purposes is defined in reg 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.

17. At the time of hearing the applicant told the Tribunal that his parents were resident in Australia and had been since they came in 2007. His only brother and his sister have been in Australia since they came with his parents. His father was granted a Skilled Visa and his mother, brother and sister came as dependents on that visa. The applicant said that at the time they had been advised he was not eligible to be included as a dependent as he was aged 21. The applicant said that he did not have any other siblings.

18. The applicant told the Tribunal that he and Grecia Fidez had married at Parramatta Registry in December 2019. The applicant said he had met his wife in the Philippines in 2017 through his cousin. At the time she had been working in Saudi Arabia as a nurse. She was there for four years before she came to Australia to continue her studies. When they made the decision to marry, they thought the applicant would be able to add her as his wife to his application as a dependent.

19. When they contacted the Department to advice of a change in the applicant’s circumstances, they were very surprised to be advised of the implications the marriage had on his application.

20. The applicant advised his wife’s parents were living in the Philippines as were her two brothers and two sisters. She had one brother who was deceased.

21. Relevant to this application the Tribunal finds that parents and siblings of a spouse are 'near relatives' within the meaning of r. 1.15(2). There is no evidence before the Tribunal that Ms Fidez’s relatives are usually resident in Australia and are Australian citizens, Australian permanent residents, or eligible New Zealand citizens. The Tribunal is not satisfied that the applicant and the applicant's partner have no near relatives other than those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible NZ citizens. The Tribunal is not satisfied the applicant meets paragraph 1.15(1)(c) of the definition of 'remaining relative'. Accordingly, the Tribunal finds the applicant does not meet cl. 835.212.

22. There is no evidence before the Tribunal to indicate that the applicant meets the criteria for the grant of the Aged Dependent Relative and Carer visas. In particular, the applicant is not old enough to be granted an age pension under the Social Security Act 1991. He therefore does not meet the definition of the term 'aged dependent relative' in r. 1.03.

23. 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.

24. 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 and cl.835.221.

25. 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

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

    Moira Brophy
    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).