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.

MIGRATION - Other Family (Residence) (Class BU) visa - Subclass 835 (Remaining Relative) - near relative offshore - biological father in Indonesia - no contact with father - tribunal cannot consider quality of relationship - common law presumption of death - benefit of the doubt given to applicant - no contact with father for over seven years - nothing in any of the documents that would allow the father to be traced - decision under review remitted

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994, Schedule 2, rr 1.03, 1.15, cls 835.212, 835.221

Axon v Axon [1937] HCA 80; (1937) 59 CLR 395

Ignatious v MIMIA [2004] FCA 1395

Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; (1941) 64 CLR 241

MIMIA v Hidalgo [2005] FCAFC 192

Scargill v MIMIA [2003] FCAFC 116

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 July 2018 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 applied for the visa on 15 November 2017.
3. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present review, 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).
4. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the applicant's biological father lives in Indonesia.
5. The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments.

1. The visa application was made on the basis that the applicant is the remaining relative of Agnes Magdalena 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: r.1.03. 'Relative' is also defined in r.1.03 and means a 'close relative' as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).
2. In this case Agnes Magdalena is the applicant's mother and permanent resident and therefore is an Australian relative for these purposes.
3. 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, which is set out in the attachment to this decision.
4. 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'.
5. 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.
6. As the Australian relative in this case is the mother of the applicant, r.1.15(1)(a) is met.
7. The dual factors of physical residency and intention are essential elements in the notion of 'usually resides' for the purpose of r.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] HCA 13; (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.
8. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.
9. 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.
10. '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. 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.
11. The applicant did not advise the Department of the name of her biological father. Information before the Department indicates Siauw Herman Gunawan is her biological father. In response to s.359A letter the applicant stated that her father left her and her family when she was 4 years old and she is not aware if he is alive or not.
12. Asked at the Tribunal hearing where he father was last seen by her she said it was when the family lived in East Borneo. Asked for location on his Kartu Tanda Penduduk ( Resident Identity Card), commonly KTP, which is an Indonesian compulsory identity card, the applicant's mother said that he was in East Borneo. Neither the applicant nor her mother have made enquiries from the government about her father's whereabouts.
13. The applicant provided a number of declarations from friends and relatives who attest to the applicant's father being separated from her mother when their children were young and the applicant's mother leaving for Australia and remarrying in Australia. It was claimed that the father just left one day and never returned. The applicant claimed that she would be homeless should she have to return to Indonesia.
14. I have considered Departmental policy that specifically provides that:

"If an applicant for a remaining relative visa claims that a near relative is dead, or missing and presumed dead, but there is no court presumption of death:

decision makers should still take account of the [rebuttable] common law presumption that a person who is missing for 7 years is dead when deciding the visa application..."

1. The common law presumption of death is commonly expressed as follows:

If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of, by those in the circumstances of the case would according to the common course of affairs to have received communication from him or have learned of his whereabouts, were he living then, in the absence of evidence to the contrary, it should be found that he is dead. (Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at [404-51])

1. The remaining relative definition does not allow the Tribunal to take into consideration the quality of the familial relationship. The Tribunal is sympathetic to the plight of the applicant. Her whole family are in Australia.
2. The Tribunal has considered the evidence provided by the applicant and her mother. The Tribunal gives the applicant the benefit of the doubt and accepts that the applicant has not seen or heard from her father for over 7 years. The Tribunal accepts that there is nothing in any of the documents that would allow the father to be traced. The Tribunal accepts that there is no evidence to support a claim that the applicant's father is alive. Therefore the Tribunal presumes her father is dead.
3. For these reasons, the Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is met.
4. 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 at the time of decision for the purposes of cl.835.212 and cl.835.221.
5. 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.

1. 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.

ATTACHMENT - Extracts from the Migration Regulations 1994

(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:

(ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens; 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.

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).