Thompson (Migration) - [2022] AATA 5242

Thompson (Migration) [2022] AATA 5242 (25 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Robyn Thompson
Master Joshua Grant Thompson
CASE NUMBER:  2003524
HOME AFFAIRS REFERENCE(S):          CLF2019/30238
MEMBER:Maxina Martellotta
DATE:25 November 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 25 November 2022 at 1:59pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – ‘remaining relative’ of an Australian relative – sibling – usually resident in Australia – no near relatives – a half-brother who resides in the United Kingdom – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15; Schedule 2, cls 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 February 2020 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 30 July 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, the applicants are 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.
The delegate refused to grant the visas on the basis that cl 835.212 was not met because the primary applicant (the applicant) was not the remaining relative of an Australian relative at the time of making their application. This was because she had a near relative, a half-brother, not resident in Australia.
The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the remaining relative of Mrs King, 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).
In this case the applicant claims that Mrs King is her sister and an Australian Citizen.
Is the applicant a remaining relative of an Australian relative?
To be…

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 Thompson (Migration)

Details

AGLC: Thompson (Migration) [2022] AATA 5242
Case: [2022] AATA 5242
Decision Date: 25 November 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative) visa. The applicant sought to establish that they were a "remaining relative" of an "Australian relative," who was identified as Mrs King, an Australian citizen. The decision under review affirmed the refusal of the visa application.

The Tribunal was required to determine whether the applicant met the criteria for being a "remaining relative" under the Migration Regulations 1994. This involved assessing whether Mrs King was an "Australian relative" and, crucially, whether the applicant qualified as a "remaining relative" in relation to her. The definition of "remaining relative" necessitates that the Australian relative is a parent or sibling, usually resident in Australia, and that the applicant has no "near relatives" other than those who are usually resident in Australia and are Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal accepted evidence that the applicant and Mrs King were biological siblings, thus satisfying the requirement that the Australian relative be a sister. However, the core of the decision rested on the interpretation of "near relatives" and the applicant's familial circumstances. The applicant's half-brother resided in the United Kingdom and was not an Australian citizen, permanent resident, or eligible New Zealand citizen. The Tribunal found that this half-brother constituted a "near relative" who was not usually resident in Australia and did not meet the specified criteria. Consequently, the applicant failed to satisfy the condition that they have no near relatives other than those who are usually resident in Australia and hold Australian citizenship or residency status.

Accordingly, the Tribunal affirmed the decision to refuse the visa application, as the applicant did not meet the definition of a "remaining relative" under the relevant regulations.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was made on the basis that the applicant is the remaining relative of Mrs King, 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). In this case the applicant claims that Mrs King is her sister and an Australian Citizen. Is the applicant a remaining relative of an Australian relative? 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. 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’. 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) At hearing the applicant gave oral evidence that Mrs King is her older sister. She stated that she and Mrs King are the children of the same biological parents who are now both deceased. Extracts of the birth certificates for the primary applicant and Mrs King were provided in support of the visa application. Whilst neither of these documents identify the biological parents of the applicant and Mrs King, the Tribunal is satisfied and accepts the evidence provided at hearing that the primary applicant and Mrs King have the same biological parents and are siblings. As the Australian relative in this case is the sister of the applicant, reg 1.15(1)(a) is met.Whether the Australian relative is usually resident in Australia: reg 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 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant both the primary and secondary applicant Other Family (Residence) (Class BU) visas.Maxina MartellottaMemberATTACHMENT - 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).