Vanina (Migration) - [2021] AATA 4902

Vanina (Migration) [2021] AATA 4902 (22 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Hana Ida Ayu Vanina
CASE NUMBER:  1821825
HOME AFFAIRS REFERENCE(S):          CLF2015/38229
MEMBER:Mila Foster
DATE:22 December 2021
PLACE OF DECISION:  Sydney
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 22 December 2021 at 5:01pm
CATCHWORDS
MIGRATION – Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – no near relatives except specified family members in Australia – family composition – no half-siblings from parents’ second marriages – father deceased – credible oral evidence consistent with documentary evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1), (2), 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 25 July 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 June 2015. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.212 which requires that the applicant is a remaining relative of an Australian relative at the time of application.
The delegate refused to grant the visa on the basis that cl 835.212 was not met because the delegate was not satisfied that the applicant’s father was deceased as claimed or that the information the applicant had provided accurately reflected the composition of her family given her father’s second marriage.
The applicant appeared before the Tribunal via video on 10 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Timotius Oky Mario and Yohanes Dimas Dewangga.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The applicant claims to be a…

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 Vanina (Migration)

Details

AGLC: Vanina (Migration) [2021] AATA 4902
Case: [2021] AATA 4902
Decision Date: 22 December 2021

CaseChat Overview and Summary

This matter concerned an application for a Subclass 835 (Remaining Relative) visa by an Indonesian citizen. The applicant claimed to be the remaining relative of Mr Mario, who she asserted was her Australian relative. The decision under review was made by the Migration Tribunal, with Member Mila Foster presiding.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 835 visa, specifically whether she was a "remaining relative" of an "Australian relative" at the time of her application and at the time of the decision. This involved assessing the composition of her family, including the existence and location of any near relatives, in accordance with clauses 835.212 and 835.221 of the Migration Regulations 1994. A key aspect of the assessment was the interpretation of "movement records" and the validity of a certificate issued under section 376 of the Migration Act 1958.

The Tribunal found the applicant, Mr Mario, and Mr Dewangga to be credible witnesses, whose oral evidence was consistent with the documentary evidence. The Tribunal also determined that a certificate issued under s 376 of the Act, which sought to prevent disclosure of movement records, was not valid because the information had been retrieved from the Movement Data Base and saved to a Department case file, thus no longer being information stored in the Movement Data Base itself. Based on the evidence presented, the Tribunal was satisfied that the applicant was the remaining relative of an Australian relative at the relevant times.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl 835.212 and cl 835.221 of Schedule 2 to the 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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. The applicant claims to be a 38-year-old Indonesian citizen. Her visa application was made on the basis that she is the remaining relative of Mr Mario, who she claims is her Australian relative. The evidence before the Tribunal includes the Department file relating to the applicant’s visa application,[1] documentary and photographic evidence submitted on review, oral evidence given at the Tribunal hearing, and movement records from the Department’s Movement Data Base which the Tribunal accessed. The Tribunal found the applicant, Mr Mario and Mr Dewangga to be credible witnesses. Their oral evidence was given in a forthright manner and was consistent with the supporting documentary evidence. [1] The Department file contains a certificate to the Tribunal made under s 376 of the Act certifying that disclosure of information at folios 57-66 would be contrary to the public interest because “it contains information about the international movements of the applicant and her family members and their privacy may be breached if this information is disclosed to parties who are not the applicant. Please note – movement records must be accessed or used in accordance with s 488 of the Migration Act 1958. Unlawful access, use or disclosure of information contained in Movement records can result in criminal conviction and 2 years imprisonment.” Section 488 provides that a person must not read, examine, reproduce by any means, use or disclose by any means any part of movement records, otherwise than in accordance with authority given under s 488(2). ‘Movement records’ is defined in s 5 as ‘information stored in a notified data base’. Pursuant to s 489, the Minister may declare a database to be a notified database. Gazette notice No. GN 34, 31 August 1994 declares the Movement Data Base to be a notified database for the purposes of s 489. Accordingly, it appears that s 488 is limited to information stored in the Movement Data Base. In the Tribunal’s view, once information has been retrieved from the Movement Data Base and saved to a Department case file it is no longer information stored in the Movement Data Base. As such, while s 488 operates to limit access to the Movement Data Base, it does not apply to records held on the Department file. The Tribunal thus finds that the certificate is not valid. The applicant made the following declarations in connection with her visa application about the composition of her family:[2]a.She did not have a partner. She was separated and single.b.She did not have children. c.Her mother, Yulie Sarah, was residing in Australia. Her mother was an Indonesian national who was granted permanent residence in Australia in 2005. d.She had two siblings both of whom were brothers.e.Her brother, Mr Mario, was an Indonesian national residing in Australia. He was granted permanent residence in Australia in 2005. f.Her brother, Mr Dewangga, was an Indonesian national residing in Australia. He was granted permanent residence in Australia in 2005. g.Her father, Indi Hartono, was deceased.[2] Department file, ff.12,18,49,72,74,80,82,83,85.

Decision

Reasons for decision

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. The appropriate course therefore is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.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 RegulationsMila FosterMemberATTACHMENT - 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).

Ratio Decidendi

Legal Principle Established

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 RegulationsMila FosterMemberATTACHMENT - 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).