Yambao (Migration)

[2017] AATA 2598

Yambao (Migration) [2017] AATA 2598 (20 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joseph Yambao

CASE NUMBER:  1605347

DIBP REFERENCE(S):  CLF2015/22751

MEMBER:Kira Raif

DATE:20 November 2017

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; and

·cl.835.221 of Schedule 2 to the Regulations.

Statement made on 20 November 2017 at 10:22am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Australian Divorce – Parents and siblings live in Australia 

LEGISLATION

Migration Act 1958 s 65

Migration Regulations 1994 rr 1.15, 1.15(1)(c) , 1.15(2) Schedule 2 cls 835.212, 835.221

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 Immigration on 31 March 2016 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the Philippines, born in March 1981. He made the application for the visa on 14 April 2015. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied the applicant was the remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 20 November 2017 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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 (the Regulations).

5. 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 r.1.15 of the Regulations.

6. 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. ‘Near relative’ for these purposes is defined in r.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.

   Is the applicant a remaining relative of an Australian relative?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant identified his parents and siblings as near relatives and stated that they all reside in Australia.

8. The primary decision record indicates that the applicant entered Australia with his spouse in December 2013 holding a Student visa. That visa expired in March 2015 but the applicant’s spouse remains in Australia. The applicant stated in his application that he is no longer in a relationship with his spouse and he provided with his application a Notice of Application for Divorce, which refers to the couple being separated from December 2013. The delegate notes that the applicant failed to provide any evidence of separation.

9. In response to the request for further information from the delegate, the applicant provided a statement and declarations from family members confirming his separation from his spouse. The applicant also presented a divorce order date 19 June 2015. The delegate formed the view that the Australian Divorce order is not recognised as both the applicant and his spouse are citizens of the Philippines.

10. The Tribunal finds that reasoning, with respect, erroneous. The Australian court has accepted jurisdiction because both the applicant and his former spouse are resident in Australia and have been residing in this country for a number of years. The Australian courts have the jurisdiction to issue the Divorce Order and such order is valid and has the effect that the applicant’s marriage with his wife is annulled. The Tribunal is also mindful that in order to obtain the divorce, the applicant would have to establish that his relationship with his wife had broken down irretrievably at least 12 months before the divorce order was issued.

11. The Tribunal acknowledges that the fact of the formal divorce does not necessarily establish that the applicant and his former wife are no longer in a spousal (including a de facto) relationship. That is, they may have maintained a mutually committed and exclusive relationship despite the formal divorce process. However, in the present case, there is no evidence that such a relationship continues to exist. It appears that the only basis for the delegate’s conclusion is that the former spouse remains in Australia after the expiry of her visa. That is not sufficient, in the Tribunal’s view, to establish that she remains in Australia as a de facto partner of the applicant. There is simply no evidence that their relationship continues.

12. The applicant’s oral evidence to the Tribunal is that he and his former wife separated in December 2013 when his ex-wife left the family home. The applicant said they came to Australia on 21 December. The applicant described his relationship with his wife and the events that affected that relationship. He said the relationship was over by the end of December 2013 when he realised his wife was cheating and she moved to a different place. The applicant said he was served with divorce papers in January 2015 and at that time his ex-wife was living in NSW. Since that time he had no contact with his ex-wife. The applicant said he wanted to reconcile and made contact with her family but things did not work out.

13. The applicant’s evidence to the Tribunal is that he was the primary student visa holder and his ex-wife was holding the student dependent visa. He said he did not inform Immigration about the changes in his circumstances because he was depressed and confused and he was hoping they would reconcile and he did not know what to do. The Tribunal is concerned that this implies the applicant had not been truthful in his dealings with the Immigration Department by failing to inform Immigration about changes in his circumstances.

14. Nevertheless, the Tribunal has formed the view that the applicant has been truthful in his evidence about the circumstances of his relationship with his ex-wife. The applicant’s evidence is that they had no contact with each other after the divorce proceedings and he was unaware of her unlawful stay in Australia before receiving the Department’s decision. The applicant said after his ex-wife left the family home, there was no need to split the finances because they always had separate financial arrangements. There is no evidence that the couple continued to maintain joint financial affairs since December 2013. The applicant’s evidence is that his family was upset about the split-up and he also informed her family. They did not socialise together. There is no evidence that the couple continued to represent themselves to others as being in a relationship. They have not lived together since December 2013 and do not share the household. There is no evidence to suggest there continued to be a mutual commitment at least by the time the divorce proceedings were initiated in early 2015.

15. The Tribunal also places weight on the declarations from the applicant and his family members about the relationship breakdown, the oral evidence and the Tribunal places significant weight on the Divorce Order which indicates the Court’s satisfaction that the relationship broke down irretrievably by late 2013. In the absence of any other probative evidence that the applicant’s relationship with his former wife is ongoing, the Tribunal is satisfied, on balance, that the relationship had ended by late 2013. The Tribunal finds that the applicant does not have a spouse and did not have a spouse at the time the application was made.

16. As the entirety of the applicant’s near relatives are Australian citizens or permanent residents and reside in Australia, the Tribunal is satisfied the applicant meets the definition of a remaining relative in r. 1.15. He meets cl. 835.212 and cl. 835.221.

    Conclusion

17. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

18. 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; and

    ·cl.835.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member