1412318 (Migration)

[2015] AATA 3791

1412318 (Migration) [2015] AATA 3791 (26 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss A. Saraswathy Sarah

CASE NUMBER:  1412318

DIBP REFERENCE(S):  CLF2014/25764

MEMBER:Jane Bishop

DATE:26 November 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 26 November 2015 at 4:01pm

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 26 June 2014 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 19 February 2014. 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the applicant was not the remaining relative of an Australian relative.

4. The applicant appeared before the Tribunal on 19 November 2015 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of Ms Tanya Ummaiyall Stephen, who the applicant claims is her 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).

   Is the applicant a remaining relative of an Australian relative?

7. 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.

8. 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’.

9. 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.

10. On the Departmental file there is are certified copies of birth and marriage certificates indicating that the applicant and sponsor share the same mother. Based on the evidence before it the Tribunal finds that Ms Stephen is the applicant’s sister and r.1.15(1)(a) is met.

11. The evidence before the Tribunal is that Ms Stephen is an Australian citizen and has resided in Australia since 2009. The Tribunal therefore finds that the Australian relative is usually resident in Australia and r.1.15(1)(b) is met.

    No near relatives: r.1.15(1)(c)

12. 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.

13. ‘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.

14. On the Department file there is a Deed of Severance dated 4 April 1997 between the applicant’s father and mother. The applicant said her parents entered into the Deed to ensure her mother’s assets were protected from her father. She said her father has never been part of her life and the first time she saw him was in 1997. She considers him a mere biological donor and has no relationship with him. She does not know if he is dead or alive.

15. The applicant said that she made enquires at the address listed for her father in the 1997 Deed and discovered that he had moved five years ago. In an email the applicant sent to her friend Sally she stated that “I have an address that he stayed at previously with his current family and I sent my friend there to enquire but they shifted out five years ago”.

16. The Tribunal explained to the applicant that there is no evidence before it that indicates her father has died or is an Australian citizen, permanent Australian resident or eligible New Zealand citizen residing in Australia. The Tribunal explained to the applicant that her father is a near relative and if the Tribunal is not satisfied that she has no near relatives other than those that are Australian citizen, permanent Australian resident or eligible New Zealand living in Australia then the decision under review would need to be affirmed. The applicant responded that she has attempted to find her father without success. She hired a private investigator but he was unable to locate him because of the Data Protection Act. She contacted Births, Deaths and Marriages in Singapore but – because she does not know her father’s date of birth or full name – it would have cost thousands to undertake a search. The applicant said it is not her fault that she cannot produce a death certificate.

17. The most recent information is that the applicant’s father moved house five years ago with his current family. There is nothing before the Tribunal to suggest that the lack of contact between the applicant and her father should give rise to the presumption of death. No contact between the applicant and her father was a result of the applicant’s parents separating soon after the applicant was born.

18. Thus, the Tribunal finds that, at the time of application and at the time of decision, the applicant’s father was a ‘near relative’ within the meaning of r.1.15(2).

19. Based on the evidence before it, the Tribunal is not satisfied that both at the time of the application and at the time of the decision, the applicant had no near relatives other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

20. For the reasons given above, the Tribunal finds that the applicant does not satisfy cl.835.212 and cl.835.221.

21. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Jane Bishop
    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).