Unser (Migration)

[2022] AATA 474

Unser (Migration) [2022] AATA 474 (8 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Schanen Lynn Yates Unser
Ms Ruby Mitchell Unser

REPRESENTATIVE:  Ms Jessica Emilly Edis

CASE NUMBER:  2015938

HOME AFFAIRS REFERENCE(S):          CLF2020/45373

MEMBER:Maxina Martellotta

DATE:8 March 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 08 March 2022 at 2:58pm      

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – no near relatives other than specified citizens or permanent residents usually resident in Australia – one adult child a secondary applicant, the other living, studying and working in home country – dependency – started full-time work two months before visa application made – originally intended to be secondary applicant, but returned to home country to complete studies – COVID-19 travel restrictions – some support from applicant to Australian citizen sibling with medical and personal issues, but not eligible for carer visa – no referral for ministerial consideration but applicant can request directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), 1.15(1)(c), (2), Schedule 2, cls 835.212, 835.221, 835.321

CASES
Huynh v MIMA [2006] FCAFC 122
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 12 October 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 25 August 2020. 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 in Schedule 2 of the Regulations.

3. The secondary applicant Ruby Mitchell Unser is the daughter of the primary applicant Schanen Lynn Yates Unser. Her application is made on the basis that she is a member of the family unit of the primary applicant. Her application is dependant upon the primary applicant satisfying the criteria for the grant of a subclass 835 visa.

4. The delegate refused to grant the visas on the basis that cl 835.212 was not met because at the time of application the primary applicant did not meet the definition of a Remaining Relative (regulation 1.15). As a result the delegate further decided that the secondary applicant could not satisfy clause 835.321 in Schedule 2 of the Regulations- namely the applicant did not continue to be a member of the family unit of a person who having satisfied the primary criteria, is the holder of a Subclass 835 visa.

5. The applicants appeared before the Tribunal on 8 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

6. The Tribunal exercised its discretion to hold the hearing by video.  The applicants consented with this arrangement. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

7. The applicants were represented in relation to the review.  The representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The visa application was made on the basis that the primary applicant is the remaining relative of Colleen Michelle Yates who the  primary 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).

   Is the applicant a remaining relative of an Australian relative?

10. To be granted a Subclass 835 visa the primary 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.

11. 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’.

12. 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)

13. In this case based on the presented oral evidence and relevant Department documents, the tribunal is satisfied and finds that Colleen Michelle Yates is the applicant’s sister and an Australian citizen, and therefore is an Australian relative for these purposes. 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)

14. 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.

15. In this case based on the presented oral evidence and the provided documents the Tribunal is satisfied and finds that at the time of application and time of hearing Colleen Michelle Yates is usually resident in Australia. 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 Form 470A submitted by the primary applicant in support of her application identifies the following near relatives:

    a)Ruby Mitchell Unser her daughter and secondary applicant who is onshore in Australia with her mother. This person is over the age of 18 years (born August 1998)

    b)Her son Robert William Unser III who is offshore in the United States of America. This person is over the age of 18 years (born November 1995). This person is not an Australian citizen, permanent resident or eligible New Zealand citizen.

    c)Her sister Colleen Michelle Yates who is an Australian citizen and lives in Australia.

    d)Her sister Kelly Samantha Yates who is an Australian citizen and lives in Australia.

19. At the time of application and at the time of decision the primary applicant’s siblings were both onshore living in Australia.  The Tribunal is satisfied that the primary applicants’ siblings are usually resident in Australia both at the time of application and time of decision.

20. At the time of application and time of decision the primary applicant’s son was residing in the United States of America.  Adult children are considered near relatives unless found to be a dependent child of the applicant.  The delegate in their decision concluded that the applicant’s son was not a dependent child.

21. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).

22. Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].

23. The primary applicant provided the following evidence:

    a)Prior to the date of her application (25 August 2020), her son was living and studying Computer Science in the United States.  He had been studying since 2015. He was studying full time and had a part time job at a sandwich shop.

    b)His job only paid for incidentals and she was the person who helped him with bills, paid his rent and paid his education costs. Whilst her son was a student, she was his main source of income and meeting his financial costs. She bought him a car. He did not receive any financial assistance from his father (who is now deceased).  Every quarter she would send him money to cover these costs.

    c)Her son graduated in June 2020 and secured employment and is working full time in the United States. He meets all his own costs of living - apart from occasionally calling her for money.

    d)Prior to her son graduating and obtaining employment he was financially dependent but since he commenced employment that is no longer the case.

    e)Her son has never been in a de-facto or spousal relationship.

    f)Her son is not incapacitated for work as a result of total or partial loss of bodily or mental functions.

24. In the Form 47OF that was provided in support of her application the applicant noted that her son was working at a café from June 2019 and prior to that he was worked in a restaurant from May 2016.  That form did not include information about her son’s studies.  The applicant stated at hearing that they did not have legal assistance when they completed the document.

25. The tribunal finds that:

    a)    at the time of the visa application made on 25 August 2020, the applicant’s son was over the age of 18 years,

    b)    prior to the application the applicant’s son was working part time and otherwise a student since 2015,

    c)   whilst a student the applicant provided her son with financial support to cover costs including his rent and other day to day costs and that apart from his mother his only other source of income was from part time employment,

    d)   the applicant’s son has been in full time employment since graduating in June 2020. He meets all his costs of living and is not incapacitated for work as a result of total or partial loss of bodily or mental functions.

26. The tribunal concluded that is satisfied that at the time of application made on 25 August 2020 and at the time of decision, the primary applicant’s son did not meet the definition of a dependent child being a person who:

    ·was wholly or substantially’ reliant on the other person for financial support; and

    ·was so reliant at that time and for a substantial period immediately before; and

    ·the financial support being provided is to meet the person’s basic needs for food, clothing and shelter; and

    ·the person’s reliance on the other person is greater than his or her reliance on any other person or source of support.

27. This means that at the time of application and at the time of decision the applicant’s son is a near relative as defined in regulation 1.15 (2) and further is not an Australian citizen, permanent resident or eligible New Zealand citizen.

28. 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)

29. 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.

30. For the reasons set out above, the Tribunal is not satisfied that the primary applicant is the remaining relative of an Australian Relative at the time of decision for the purposes of cl 835.221. The primary applicant does not meet the criteria for a Subclass 835 visa.

31. In respect of the other visa subclasses there is no material which would permit a finding that the primary applicant meets prescribed criteria for the visa sought. In this regard whilst the Tribunal notes that the primary applicant provided evidence regarding medical and personal issues being experienced by one of her sisters and the support that she has attempted to provide to that sibling together with her sponsor (sister), there is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl.836.212, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

32. The Tribunal also finds that the applicant is not entitled to the grant of the Subclass 838 (Aged Dependent Relative) visa as there is no evidence before the Tribunal that the applicant is dependent upon the Australian relative as required by the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212.

33. In this matter the Tribunal has concluded that as at the time of application and at the time of decision the primary applicant does not meet the criteria for a Subclass 835 visa or any of the other subclasses. The second applicant was invited to make her own submissions to the Tribunal, but she advised that she wanted her mother to speak on her behalf. The secondary applicant’s only claim in this matter is that she is a member of the primary applicant’s family unit. This means that the secondary applicant does not satisfy clause 835.321 of Schedule 2 in that she does not continue to be a member of the family unit of a person who having satisfied the primary criteria, holds a Subclass 835 visa..

34. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Request for Ministerial referral

35. The  primary applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The primary applicant told the Tribunal that:

    a)Apart from her son all her close family are living in Australia.

    b)She and her daughter have established themselves within the community and the primary applicant has made strong work connections.

    c)Her son was meant to be part of the visa application, but he returned back to the United States to complete his studies by which time due to the COVID-19 pandemic he was unable to return and since then he has since remained in the United States. For this reason he was not in Australia when the primary applicant and secondary applicant made their application and the primary applicant felt she had no other alternative but to make the application on that basis.

    d)She has a sister (not the sponsor) who has significant health and personal issues.  It has been a very difficult time for the family, and she wants to be able to provide her share of support.

    e)The family have experienced some recent deaths. Her children’s father has passed away. 

36. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal acknowledges the matters raised by the primary application but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    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).