Seymour (Migration) - [2019] AATA 3254

Seymour (Migration) [2019] AATA 3254 (15 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Clinton James Seymour
CASE NUMBER:  1730218
HOME AFFAIRS REFERENCE:               CLF2017/6493
MEMBER:Lilly Mojsin
DATE:15 March 2019
PLACE OF DECISION:  Sydney
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:
· cl.835.212 of Schedule 2 to the Regulations and
· cl.835.221 of Schedule 2 to the Regulations.

Statement made on 15 March 2019 at 4:23pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – near relative offshore – applicant’s father in United Kingdom – no contact with biological father – common law presumption of death – benefit of the doubt – no contact with father for over 7 years – nothing in documents that would allow father to be traced – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A,
Migration Regulations 1994, Schedule 2, cls 835.212, 835.221, rr 1.03, 1.15
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
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 14 November 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 January 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present review, 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).
The delegate refused to grant the visa on the basis that cl.835.212 was not met because the applicant’s father, resided in the United Kingdom.
The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Rachael Seymour, his sister.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the remaining relative of Jacqueline Rimmington, 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…

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 Seymour (Migration)

Details

AGLC: Seymour (Migration) [2019] AATA 3254
Case: [2019] AATA 3254
Decision Date: 15 March 2019

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), made by Clinton James Seymour. The applicant sought to migrate to Australia to live with his Australian citizen mother, Jacqueline Rimmington. The core of the dispute revolved around whether the applicant had any "near relatives" who were not usually resident in Australia and were not Australian citizens, permanent residents, or eligible New Zealand citizens, as required by regulation 1.15(1)(c) of the Migration Regulations 1994. The applicant’s biological father, James Lionel Seymour, resided in the United Kingdom and was not an Australian citizen.

The Tribunal was required to determine if the applicant met the criteria for a Subclass 835 visa, specifically whether he had any near relatives, such as his father, who were not usually resident in Australia and did not meet the specified citizenship or residency requirements. The applicant asserted that he had no contact with his biological father for over seven years, that his father had neglected him, and that he would be homeless and without family in the United Kingdom if forced to return. The Tribunal also considered the applicant's sister, Tammy Leigh Hitching, who was initially stated to reside in England but later confirmed to be residing in Australia.

The Tribunal found that the applicant's sister, Tammy Leigh Hitching, was now usually resident in Australia. Crucially, the Tribunal accepted the applicant's evidence regarding his lack of contact with his biological father for over seven years, noting that there was nothing in the documentation to assist in tracing him. In light of this, the Tribunal applied the principle of giving the applicant the benefit of the doubt regarding his father's status and whereabouts, effectively concluding that the applicant did not have a near relative other than those usually resident in Australia and who met the citizenship or residency criteria.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl.835.212 and cl.835.221 of Schedule 2 to the Migration Regulations 1994. This indicated that the applicant had satisfied the "remaining relative" requirements, allowing for further assessment of the remaining visa criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Rachael Seymour, his sister.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the remaining relative of Jacqueline Rimmington, 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 review Jacqueline Rimmington is the applicant’s mother and she is an Australian citizen and therefore is an Australian relative for these purposes. On 30 January 2019 the Tribunal wrote to the applicant pursuant to s.359A as follows: · In the application for Other Family (Residence) (Class BU) 835 visa made by Clinton James SEYMOUR it was stated that he had a biological father, James Lionel SEYMOUR, who resides in England and is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen. It was also stated that his sister, Tammy Leigh Hitching an Australian citizen, resides in England. This information is relevant to the review because if the applicant for a remaining relative visa, Clinton James SEYMOUR, has a near relative ie a parent or a sister, who is not usually resident in Australia, irrespective of the quality of familial relationships, then Clinton James SEYMOUR is unable to meet regulation 1.15(1)((c).If we rely on this information in making our decision, we may find that Clinton James SEYMOUR is unable to meet cl.835.212 of the regulations and affirm the decision under review. By letter of 13 February 2019 the applicant stated his sister Tammy Leigh Hitching is now residing in Australia and has been since 6 December 2017. Her passport number is: [deleted]. The applicant’s father neglected him. On one occasion after his father left he passed him in the street and his father totally ignored the fact that he had seen him. It tortured the applicant and made him angry. He has had to have counselling to help him understand the situation and why his father did what he did. He is deeply upset that someone of this status can prevent him from being with his family. At the Tribunal hearing the applicant stated that he would be homeless and would have no family in the United Kingdom if he had to return. He has a bright future in Australia, he works for a water treatment company. They will put him through training. His sister Rachel moved to Australia about 10 years ago and his mother returned to Australia in 2016 and his other sister came later. His mother came back on a resident return visa. The last time he saw his father was when he was 9 years old. He is now 22 years of age. REASONS AND FINDINGS

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:·cl.835.212 of Schedule 2 to the Regulations and·cl.835.221 of Schedule 2 to the Regulations.Lilly MojsinMemberATTACHMENT - 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:·cl.835.212 of Schedule 2 to the Regulations and·cl.835.221 of Schedule 2 to the Regulations.Lilly MojsinMemberATTACHMENT - 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).