Simpson (Migration)

[2021] AATA 118

Simpson (Migration) [2021] AATA 118 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alvin Simpson

CASE NUMBER:  1806903

DIBP REFERENCE(S):  CLF2017/40068

MEMBER:P. Maishman

DATE:21 January 2021

PLACE OF DECISION:  Perth

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,

·cl.835.221 of Schedule 2 to the Regulations.

Statement made on 21 January 2021 at 2:57pm

CATCHWORDS      

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – near relatives outside Australia – identity and whereabouts of father and existence of half-siblings unknown – unregistered and unknown father not a parent within meaning of Act – credible evidence – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 5(1), 5CA(1)(a), 65

Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(c), (2), Schedule 2, cls 835.212, 835.221

Family Law Act 1975 (Cth), s 69R

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 Immigration on 7 March 2018 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 29 May 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 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 was not met because the delegate was not satisfied the applicant has no near relatives outside Australia.  

4. The applicant appeared before the Tribunal on 14 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Deborah (AKA Pauline) Simpson.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of Deborah Pauline Simpson, 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).

7. In this case Deborah Pauline Simpson is the applicant’s sister and Australian citizen and therefore is an Australian relative for these purposes.

8. The applicant gave the Tribunal a copy of the delegate’s decision record. The delegate was concerned the applicant has not disclosed the identity of his father nor established his father is deceased. Further, his father may have had children who would be half-siblings and ‘near relatives’ of the applicant.

9. The issue before the Tribunal is whether the applicant has no near relatives other than those usually resident in Australia.      

   Is the applicant a remaining relative of an Australian relative?

10. 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.

11. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

12. The applicant 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)

13. Birth certificates provided to the Department show the applicant and the sponsor are the children of Ellen May Simpson. The sponsor’s Certificate of Australian Citizenship confirms she was granted Australian citizenship from 15 July 1988.

14. The Tribunal is satisfied that sponsor is an Australian citizen and the sister of the applicant.

15. As the Australian relative in this case is the sister of the applicant, r.1.15(1)(a) is met.

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

16. 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.

17. The applicant gave the Department various documents to demonstrate the sponsor is usually resident in Australia, including evidence of a house purchase in 2011, utility and rates invoices, correspondence addressed to the sponsor at her purchased property and her  driver’s licence showing an Australian address. The parties confirmed the sponsor has been resident in Australia since the 1980’s and continues to be so.

18. The Tribunal accepts that the sponsor was at the time of application, and continues to be, usually resident in Australia.       

19. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

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

20. 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.

21. ‘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-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.

22. The delegate was concerned the applicant has not disclosed the identity of his father nor established his father is deceased. Further, his father may have had children who would be half-siblings and ‘near relatives’ of the applicant.

23. The applicant is separated from his wife who now resides in the United Kingdom. He does not have any children. The applicant has two older siblings, who are both deceased, and a younger sister – the sponsor. The applicant’s mother is deceased. The applicant’s father is not identified on his birth certificate. The fathers of his siblings are not declared on their birth certificates.

24. The applicant gave evidence he does not know, and has never known, the identity of his father. The applicant said he believes he has the same father as the sponsor because they look alike. His older brother and sister looked different to them so he thought they had different fathers. The applicant and the sponsor gave consistent evidence their mother never disclosed the identity of their father. Any enquiries or conversations about their father were unanswered and the topic was dismissed. The applicant suspects his mother did not know the identity of their father.  

25. The applicant’s deceased mother is identified as Simpson on her birth certificate and as Downie on her death certificate. The applicant’s older brother’s death certificate indicates he assumed the surname Downie.

26. The Tribunal accepts the applicant and sponsors oral evidence. The applicant gave his evidence in an honest and forthright manner and the Tribunal accepts he is a credible witness. The sponsor was not listed as a witness and was asked to give evidence by the applicant only after the Tribunal suggested, during the hearing, her evidence might assist his application. The sponsor was a credible witness. The sponsor was not prepared in advance of the hearing. Her oral evidence of her and the applicant’s family history and upbringing fully corroborated the evidence given by the applicant.

27. The applicant and the sponsor separately denied the suggestion the man named Ian Downie may have been their father. Neither of them bore any physical similarities to those of Ian Downie. They gave evidence Ian Downie was in some relationship with their mother, but only from the time they were in their later primary school years. Ian Downie never adopted them as his children. Ian Downie never had any parental involvement in the applicants, or his siblings’, childhoods. Ian Downie spent time in prison and his relationship with their mother was abusive. During their mother’s relationship with Ian Downie the sponsor was fostered by her aunt and the applicant and his brother went into care homes. Their aunt had no knowledge of the identity of their father and is now deceased. Neither the applicant nor sponsor were aware of their mother marrying Ian Downie, but she may have done so given her death certificate was issued with her surname as Downie. They did not believe Ian Downie was their older brother’s father or that his birth was registered with his surname as Downie. Neither the applicant nor sponsor could explain why their older brother had assumed the surname Downie, but expected it may have happened during their mother’s relationship with him and it was not something over which their brother would have had any say. Their mother escaped the relationship with Ian Downie after about 7 years fearful that she would be killed. The sponsor said she had heard incidentally about 10 years ago that Ian Downie had been found deceased and appeared to be a vagrant.

28. The sponsor provided a submission to the Tribunal after the hearing indicating it appeared her mother may have married Mr Ian Downie at some time during the 1970’s and her oldest brother may have assumed his name because of that marriage.  

29. Section 5(1) of the Act defines ‘parent’ without limitation, as a person who is the parent of a person because the person is his or her child. Section 5CA of the Act defines a ‘child of a person’ as someone who is a child of a person within the meaning of the Family Law Act 1975 other than an adopted child. An adopted child is a child of the adoptive parents only.

30. The Family Law Act does not precisely define who is a ‘child’. However, a child-parent relationship under the Family Law Act generally refers to the relationships between a child and each of his or her biological parents. Where a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child: Family Law Act s 69R. Given the link in s 5CA(1)(a) of the Act to the Family Law Act, a ‘child of a person’ under the migration law would include a biological child of a person or the person’s named on his birth certificate.

31. There is nothing before the Tribunal to suggest the applicant is an adopted child. The Tribunal accepts the applicant has no knowledge of the identity of his biological father.

32. The Tribunal considered if an unknown biological father is defined as a ‘parent’.

33. The applicant was born in the United Kingdom. The applicant’s mother recorded her maiden surname only and did not register a married surname or the identity of the applicant’s father on his birth certificate. Unmarried fathers who are not named on the birth certificate of a child do not obtain parental responsibility over a child.[1]    

    [1]  ss 2 and 4 of the Children Act 1989 (legislation.gov.uk) accessed 18 January 2021

34. The Tribunal is satisfied the applicant’s mother was not married to the applicant’s biological father when his birth was registered. The Tribunal is satisfied the applicant’s biological father is unknown and has had no parental involvement with, or parental responsibility for, the applicant during the applicant’s life.   

35. The Tribunal finds the applicant’s unregistered and unknown biological father is not a ‘parent’ within the meaning of the Act.

36. For these reasons, the Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is met.

    Adopted child: r.1.15(1)(d)

37. 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, r.1.15(1)(d) requires that at the time of application the adoptive parent has been residing overseas for at least 12 months. This requirement does not apply in this case.

38. For the reasons set out above, the Tribunal is satisfied that the applicant is the remaining relative of an Australian Relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.

39. 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

40. 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,

    ·cl.835.221 of Schedule 2 to the Regulations.

    P. Maishman
    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).