Tavares (Migration)

[2017] AATA 2853

Tavares (Migration) [2017] AATA 2853 (11 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Thomas Manuel Tavares

VISA APPLICANT:  Mr Leo Thomas Tavares

CASE NUMBER:  1703150

DIBP REFERENCE(S):  2016/049229 OSF2016/049229

MEMBER:Margie Bourke

DATE:11 December 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:

·cl.115.211 and cl.115.221 of Schedule 2 to the Regulations.

Statement made on 11 December 2017 at 4:44pm

CATCHWORDS

Migration – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – Remaining relative at time of decision – Usually resident in Australia – Visa Applicant’s mother periodically resident in India – Mother’s support for children resident in Australia and India – Plans Australia as her usual home

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 1 Item 1123A, Schedule 2 cls 115.211, 115.221, 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

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 5 January 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 November 2016. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.115.211 and cl.115.221.

3. The delegate refused to grant the visa on the basis that cl.115.211 was not met because the delegate was not satisfied the visa applicant met the definition of remaining relative in r.1.15.

4. The review applicant appeared before the Tribunal on 4 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Elizabeth Thomas Tavares, who is the review applicant's wife.

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 visa applicant is the remaining relative of Thomas Tavares, who the visa 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. Based on the birth registration certificate I am satisfied that the visa applicant is the son of the review applicant. Based on the review applicant’s Australian passport issued 2 March 2017, I am satisfied the review applicant was an Australian permanent resident at the time of application, and is an Australian citizen at the time of decision.

8. In this case Thomas Tavares is the visa applicant’s father and an Australian permanent resident at the time of application, and therefore is an Australian relative for these purposes.

   Is the visa applicant a remaining relative of an Australian relative?

9. To be granted a Subclass 115 visa the visa 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.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.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 visa applicant and is ‘usually resident in Australia’.

11. The visa 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 visa applicant is an adopted child.

    The requirement to be a parent or sibling: r.1.15(1)(a)

12. Based on the visa applicant’s birth registration record I am satisfied the review applicant is recorded as his father.  I am satisfied that the Australian relative is the parent of the visa applicant. As the Australian relative in this case is the father of the applicant, the visa applicant meets the requirements of r.1.15(a).

    Whether the Australian relative is usually resident in Australia: r.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 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.

14. Based on the evidence before me I am satisfied that the Australian relative who is the review applicant Thomas Tavares, moved to Australia in January 2012, and lived in Perth.  The Australian relative worked at a copper mine in Western Australia for 18 months, and has worked at his current employment at a gold mine in Kalgoorlie in Western Australia for three and a half years. I am satisfied that Thomas Tavares works approximately fourteen days at the mine, and then has seven days ‘off’ with his family. I am satisfied the at Thomas Tavares and his family lived in Perth while his daughter studied at university there, and moved to Melbourne in March 2017 when his daughter studied at Victorian universities.  I am satisfied based on the oral evidence before me that Thomas Tavares and his wife have sold their home in Pune, India, but retained his smaller parents’ place in Pune. I accept that Thomas Tavares and his family have resided in rental accommodation in Australia but hope to purchase their own place in the future in Australia.

15. Based on the evidence before me, I am satisfied that the Australian relative of the visa applicant is usually resident in Australia, at both the time of application and at the time of decision.  As the Australian relative is usually resident in Australia, the visa applicant meets the requirements of r.1.15(1)(b).

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

16. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

17. ‘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 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.

18. I am satisfied based on the evidence before me that the visa applicant’s near relatives include his parents and his sister. I am satisfied that the visa applicant does not have a spouse or de facto partner.

19. I am satisfied the visa applicant’s father, the Australian relative discussed in paragraph 14 above, is usually resident in Australia.

20. I am satisfied that the visa applicant’s sister is the holder of an Australian permanent resident visa granted 26 November 2014, based on the documents provided by the review applicant.  I am satisfied that the visa applicant’s sister studied a Bachelor degree of neuroscience at the University of Western Australia for three years from 2013.  I am satisfied the visa applicant’s sister studied at Monash university in 2017, and has been accepted for a Masters Degree in Biomedical Engineering at Melbourne University in 2018. I am satisfied the visa applicant’s sister has resided at the homes rented by her father in Perth and in Melbourne while she has been studying in Australia.  I am satisfied that her father has paid her education fees and financially supported her. I am satisfied that the visa applicant’s sister was usually resident in Australia at the time of application, and at the time of decision.

21. I make the following findings based on the oral evidence at the hearing, which was confirmed by movement records of the visa applicant’s mother Elizabeth Tavares, which were discussed in the hearing. I am satisfied that the visa applicant’s mother came to Australia with her husband in 2012, and returned to India after four months when they could not afford the university fees for the visa applicant’s sister.  I am satisfied that the visa applicant’s mother returned to Australia in August 2013 with her daughter, and the daughter commenced studies in Western Australia.  The visa applicant’s mother stayed for a period of nine months until late May 2014 with her husband and daughter. I am satisfied that the visa applicant’s mother returned to Australia for a short period in November 2014, at which time based on the visa grant notice, she was granted the permanent resident visa.  I am satisfied the visa applicant’s mother returned to Australia in August 2016 and stayed for two months with her husband and daughter. I am satisfied the visa applicant’s mother returned to Australia on 20 February 2017, and has remained in Australia since that date.

22. I am satisfied that the visa applicant’s mother intends to make Australia her future home.  I am satisfied the visa applicant’s parents have sold their home in Pune, but have retained the visa applicant’s father’s parents smaller home there. I am satisfied the visa applicant’s mother’s husband and daughter are settled in Australia.

23. I am satisfied that the visa applicant’s mother is committed to supporting her two children, and their careers.  I am satisfied the visa applicant’s mother returned to Australia in August 2013 and stayed with her daughter for nine months while her daughter settled in to her university studies. I am satisfied that the visa applicant’s mother obtained some limited on-call work during this period but the work was not reliable as an ongoing income source. I am satisfied that the visa applicant’s mother returned to Pune, India, to support her younger child, who was commencing his marine engineering studies.  I am satisfied the visa applicant’s mother obtained employment in Pune, which assisted the initial large ‘international student’ university fees incurred by their daughter’s course.  I am satisfied the visa applicant’s mother supported her son, who had to travel from Pune to Mumbai for his course.  I am satisfied that the visa applicant’s mother intended to provide maternal physical and financial support over a very limited period until her son had completed his studies. I am satisfied that when the visa applicant obtained a placement on a ship, the visa applicant’s mother returned to Australia in February 2017 and has remained here.

24. I am satisfied the visa applicant’s mother came to Australia in August 2016 when her husband was unwell, and was with him for two months. I am satisfied that the visa applicant’s mother was involved in the family discussions and plans about moving to Melbourne from Perth. I am satisfied that the visa applicant’s mother resided in Australia for two months just prior to the time of application. I am satisfied the visa applicant’s mother has resided in Australia for nine months at the time of decision.

25. I have carefully considered that the visa applicant’s mother was not physically living in Australia for a significant period of time in the period prior to the time of application. I have carefully considered that the visa applicant’s mother lived and worked in Pune India, and remained  a citizen of India from December 2014 to August 2016.

26. However, I have balanced these considerations with the evidence that the visa applicant’s mother is an Australian permanent resident, had sold the family home in Pune, had spent two months in Australia just prior to the time of application, and had spent significant periods of time in Australia prior to this (periods of four months and nine months) and that I am satisfied that the visa applicant’s mother at all material times intended to make Australia her usual home. For all these reasons, I am satisfied that the visa applicant’s mother was usually resident in Australia at the time of application, and at the time of decision.

27. For these reasons, I am satisfied that the visa applicant’s near relatives are usually resident in Australia.  The Tribunal is there are no near relatives other than those permitted by the regulations and therefore the visa applicant meets the requirements of r.1.15(1)(c).   

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

28. If the visa 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.

29. For the reasons set out above, I am satisfied that the visa applicant is the remaining relative of an Australian Relative at the time of application and at the time of decision for the purposes of cl.115.211 and cl.115.221.

30. 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 115 visa.

    DECISION

31. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:

    ·cl.115.211 and cl.115.221 of Schedule 2 to the Regulations.

    Margie Bourke
    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).