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

1. 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).

2. 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.

3. 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.

4. The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

7. 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?

8. 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.

9. 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’.

10. 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)

11. 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.

12. 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)

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 applicant provided oral evidence consistent with information provided in support of her visa applicant that her sister is usually resident in Australia.  Her sister immigrated to Australia with her husband. She was conferred with Australian citizenship on 27 April 2011.  She and her husband live and work in Australia and have an adult son who also resides with them. The Tribunal is satisfied on the evidence that the applicants sister is usually resident in Australia.

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

    No near relatives: reg 1.15(1)(c)

16. 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.

17. ‘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.

18. The reference to ‘brother’ includes a reference to a ‘half-brother.’[1] It has also been observed that a step relationship may cease upon the relevant spousal relationships that gave rise to it.[2]

    [1] Mercado v MIAC [2007] FMCA 1216, the Federal Magistrates Court found that the reference to ‘brother’ (albeit in the previous version of reg 1.15) included a reference to a ‘half-brother’.

    [2] ibid. In the same case, his Honour made obiter comments contrasting the blood relationship with the more ‘transient’ ‘step’ relationship recognised in reg 1.15. These comments suggest that a ‘step’ relationship may cease upon the cessation of the relevant spouse relationship that gave rise to it.

19. In this case the applicant told the Tribunal that her biological parents separated and divorced. Her father shortly after the divorce started living with another person who also had children. The applicant and her sister lived with their father, stepmother and stepsiblings.  Subsequent to her father and step-mother living together, her stepmother gave birth to a son in 1984.

20. In this case the applicant confirmed in her oral evidence the following matters and the Tribunal makes the following findings of fact:

    a)In her application for a student visa TU-50 (Student- Higher Education) Visa the applicant submitted a statement to the Department on 6 May 2018 in support of her claim that she had a genuine intention to return to South Africa. In that statement she declared that ‘Despite both my parents being deceased, I still have a close bond with my half-brother.’

    b)In her remaining relataive visa application, she did not declare her half-brother or her stepsiblings.

    c)The applicant provided a Notification of incorrect answers to the Department in relation to the remaining relative visa application, in which she declared that she did not declare her half-brother, stepmother or stepsiblings and that the correct details include, her half-brother (possibly stepbrother)[3] three stepsiblings and her stepmother (deceased). Further that her stepmother had another child (who was much older and whom she had never met).

    d)The applicant provided a Notification of incorrect answers to the Department in relation to the student visa, in which she declared that whilst in that application she had stated that she still had a close bond with her half brother and step-brothers, the correct details was that her relationship with her half brother/step brothers was friendly but I am not sure if I would describe the relationship as having a close bond.

    [3] Name stated and date of birth

21. The primary applicant told the Tribunal that she had made a ‘terrible mistake’ and had poorly expressed herself in her original student visa application.  She stated it was not her intention to mislead the Department.  She stated that the correct position was that following some years of estrangement from her father and step-father she has sought to re-connect and following the death of her father she was seeking to re-establish relationships with her step-mother, step-siblings and M.

22. The Tribunal asked the applicant why she had not declared her half brother in her remaining visa applicant and why had she retrospectively indicated that he may be a stepbrother rather than a half-brother. The primary applicant provided the following explanation:

    a)Her family history is complex.  Her mother and father separated when she was in high school. She and her sister remained living with their father in the family home.

    b)Shortly after her parents divorced her stepmother and her three children moved into the home. This was a very difficult time. Her sister moved out and the review applicant felt isolated, victimised, and estranged in the new family arrangement.

    c)About six months after this new arrangement her stepmother gave birth to a son (M).

    d)The paternity of M was never discussed. She never really turned her mind to the issue.   M referred to her father as dad and had the same family surname as herself and her father. Other step-siblings also took her father’s surname.

    e)She sought to re-connect with that side of the family but this was limited.  M now lives in the United Kingdom and she does not have contact with him.

    f)She has no independent evidence which confirms whether or not M is her half-brother.  She does not want to request a DNA test because of the sensitive nature of the situation, and she does not wish to ask him to provide a sample for testing.

    g)She is not aware of any birth certificate or other evidence which clearly documents her father is the father of that person. She has not made any inquiries to locate any such information as administrative processes in South Africa are long and complicated.

    h)She did not include any of this information in her remaining relative visa because of poor advice provided to her by an agent who assisted her in completing the forms. That person told her that she did not need to make reference to her step-siblings because her father and stepmother were both deceased. She was also advised by that agent she did not have to refer to M in her application because he was moving from South Africa to the United Kingdom and for this reason would not be relevant to the application.

23. The applicant asserts that she cannot state with any certainty if the person M is a half-brother or a step-sibling.  The Tribunal notes however, that she only raised this possibility after the Department requested that she clarify the inconsistency in the information she provided in support of her student visa application with the information she provided in her remaining relative visa. 

24. Overall, the Tribunal did not find the applicant’s evidence on this aspect very convincing. On balance, the Tribunal is satisfied that the evidence supports a conclusion that the applicant has a half-brother who currently resides in the United Kingdom.  In reaching this conclusion, the Tribunal takes into consideration the following evidence:

    a)The applicant’s father was in a relationship with her step-mother. Whilst they were living together, the step-mother gave birth to a child, M.

    b)The child M has the same surname as the review applicant’s biological father and referred to that person as his father.

    c)The applicant provided unprompted declarations to the Department in support of her application for a student visa that she had a close bond with a half-brother (who at the time resided in South Africa).

    d)Whilst the review applicant states she was poorly advised by an agent in the preparation of her remaining relative visa application, in her explanation and statutory declaration to the Department, she draws a distinction between the advice provided with respect to her step-siblings and that provided with respect to M.  When asked why there would be this distinction, the review applicant was not able to provide any probative explanation.

    e)The applicant only raises the prospect that M may be a step-sibling rather than a half brother after she was asked to explain the different claims made in her respective visa application.

25. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is not met.

    Adopted child: reg 1.15(1)(d)

26. 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, reg 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.

27. 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 and the time of decision] for the purposes of cl 835.212 and cl 835.221.

28. In this matter, the delegate’s decision further addressed the question of whether the public interest criteria (PIC) in 4020 had been satisfied this is due to the inconsistencies in the claims made in the two visa applications made by the applicant.

29. Public interest criterion (PIC) 4020(1) requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl 4020(1).

30. The requirements of cl 4020(1) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of  an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in reg 1.03, that justify the granting of the visa

31. In this matter, the Tribunal has concluded that the applicant does not satisfy the remaining relative criteria as she has a half-brother not usually resident in Australia. For this reason, the Tribunal decided that there is no requirement to further consider the PIC 4020 requirement and the related waiver provisions.

32. 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.

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

    Maxina Martellotta
    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).