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

1. 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).

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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.

9. The applicant claims that her parents’ marriage was not registered in Indonesia and ended after her father left her mother. The applicant claims both her parents subsequently remarried – her mother’s second marriage ended in divorce prior to the applicant’s visa application and her father’s marriage ended on his death in 2008.

   Is the applicant a remaining relative of an Australian relative?

10. ‘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.[3]  

    Is Mr Mario an Australian relative?

    [3] Additional provisions apply if the applicant is an adopted child which are no relevant in this case.

11. 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). ‘Close relative’ is defined in reg 1.03 as a partner, child, parent, brother or sister.

12. In this case the applicant claims Mr Mario is her brother and that he is an Australian citizen. Submitted in support of the visa application were the applicant’s birth certificate[4] and Mr Mario’s birth certificate.[5] The certificates state that they are the children of Indi Hartono and Yulie Sarah.[6] The Tribunal thus finds that the applicant and Mr Mario are siblings.

    [4] Department file, f.45

    [5] Department file, f.46.

    [6] Also known as Endang Yulianti Sarah and Yulie Dichiera: Department file, ff.187,160.

13. Records on the Department file indicate that Mr Mario was granted a permanent Skilled visa in 2011.[7] The Tribunal thus finds that at the time of application and at the time of decision Mr Mario was an Australian permanent resident. He therefore is an Australian relative for the purposes of the Subclass 835 visa criteria.

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

    [7] Department file, f.57.

14. As the Australian relative in this case, Mr Mario, is the brother of the applicant, reg 1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: reg 1.15(1)(b)

15. 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.

16. According to the Department’s movement records, Mr Mario has been usually resident in Australia since being granted permanent residence. As the Australian relative has been usually resident in Australia since 2011, reg 1.15(1)(b) is met at the time of application and time of decision.

    No near relatives: reg 1.15(1)(c)

17. 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.

18. ‘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.

19. After lodging her visa application, the applicant submitted to the Department a Divorce Order made by the Family Court of Western Australia which ordered that her marriage to Edvard Pukk on 25 October 2014 be terminated by way of divorce on 28 February 2017.[8] The order also states that there were no children of that relationship. The applicant stated at the hearing that she remained single and had no children. This was confirmed at the hearing by Mr Mario and Mr Dewangga. The Tribunal thus finds that at the time of application and time of decision, the applicant did not have a partner or children.

    [8] Department file, f.146.

20. A copy of Mr Dewangga’s birth certificate was submitted in support of the visa application indicating that he and the applicant have the same parents.[9]  On the basis of the birth certificates of the applicant and Mr Dewangga, the Tribunal finds that they are siblings.

    [9] Department file, f.43.

21. The applicant informed the Department and the Tribunal that as her parents married in church and did not register their marriage with the authorities in Indonesia, no divorce certificate was issued after her father left her mother for another woman.[10] The Department file contains a statutory declaration made by the applicant’s mother to this effect in connection with a Partner visa application.[11] Records on the Department file indicate that the applicant’s mother was granted a permanent Spouse visa in 2005 on the basis of her marriage to Duilio Ettore Dichiera and that Mr Dewangga was granted the same visa as her dependent.[12] Submitted to the Department was a Divorce Order made by the Family Court  Western Australia on 10 May 2006 which ordered that the marriage solemnised between the applicant’s mother and Mr Dichiera on 20 December 2003 be terminated by way of divorce on 11 June 2006.[13]  The order states that there were no children of the marriage. At the hearing the applicant and her brothers stated that their mother was single.  The Tribunal thus accepts that at the time of application and time of decision the applicant’s mother was single and that the applicant did not have a stepfather at those times. Further, the Tribunal finds on the basis of the oral evidence given at hearing and documentary evidence that the applicant’s mother had no children other the applicant, Mr Mario and Mr Dewangga.[14]

    [10] Department file, f. 157; applicant’s written statement on review.

    [11] Department file f.164.

    [12] Department file, f.64.

    [13] Department file, f.172.

    [14] Department file, f.134,71,110.

22. The applicant submitted to the Department a Medical Certificate of Cause of Death which states that her father died on 11 May 2008.[15] On review, the applicant submitted a Death Certificate issued by the Indonesian authorities relating to her father’s death[16] as well as photographs of the applicant at her father’s deathbed and burial. The applicant and Mr Mario stated at the hearing that Mr Mario had returned to Indonesia to obtain the official death certificate. On the basis of the death certificate, the oral evidence given by the applicant and her brothers at hearing and the other supporting evidence[17] and statements[18] presented to the Department and on review, the Tribunal finds that the applicant’s father died on 11 May 2008.

    [15] Department file, f.104.

    [16] Issued on 12 December 2018.

    [17] Department file, f.104.

    [18] Department file, ff.184,173.

23. The Medical Certificate of Cause of Death refers to Nurul Aini as the wife of the applicant’s father. The applicant had submitted to the Department a written declaration from Ms Aini stating that she married the applicant’s father in an Islamic ceremony on 3 November 2006, he had converted from Christianity to Islam prior to their marriage, and they did not have any children together.[19] The applicant claimed on review that Ms Aini had remarried and had two children with her second husband, a man named Dadang. The applicant presented Ms Aini’s Indonesian Family Card[20]  and marriage certificate[21] to the Tribunal which confirms this. The applicant and her brothers stated at the hearing that their father did not have children with Ms Aini and they had no other siblings. The Tribunal thus accepts that the applicant has no siblings other than Mr Mario and Mr Dewangga.

    [19] Department file, f.173

    [20] Issued on 10 August 2011.

    [21] Married on 4 April 2009.

24. On the basis of the above, the Tribunal finds that the applicant’s only ‘near relatives’ are her mother and two brothers, Mr Mario and Mr Dewangga. Department movements records accessed by the Tribunal indicate that the applicant’s mother and Mr Dewangga have been Australian permanent residents since 10 February 2005, and were usually resident in Australia at the time of application and at the time of decision. Hence, the applicant has no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. The Tribunal is thus satisfied that there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is met.

    Conclusion on cl 835.212 and 835.221

25. 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

26. 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

    Mila Foster
    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).