1419061 (Migration)

[2016] AATA 3332

1419061 (Migration) [2016] AATA 3332 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Verawaty Sriprai

VISA APPLICANTS:  Miss Megahwati -
Mr Jayden Walter -

CASE NUMBER:  1419061

DIBP REFERENCE(S):  OSF2010/066230 OSF2013/099076

MEMBER:Wendy Banfield

DATE:25 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 25 February 2016 at 3:22pm

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 16 September 2014 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 5 August 2010. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visas on the basis that cl.115.211(1) was not satisfied because the evidence did not support the claim that Ms Megahwati has no near relatives other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent relatives or eligible New Zealand citizens.

4. The review applicant appeared before the Tribunal on 22 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Megahwati, the visa applicant, and from Sofia Leo and Sukawaty Mackadam. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. Prior to the hearing, the following documents were submitted in evidence:

   ·     A declaration dated 19 October 2014 by the chair of the housing estate in where the applicant resides, Mr Bambang P Putranto;

   ·     A declaration dated 20 September 2014 by the owner of the house where the applicant resides, Mr Henry Leo;

   ·     An undated declaration by a neighbour of the applicant named Mr Kamit.

   ·     A statement received on 21 November 2014 by the sponsor, Ms Verawaty Sriprai and the applicant and sponsor’s sister, Ms Sukawaty Mackadam;

   ·     Photos.

   Evidence of the review applicant (sponsor)

6. The sponsor told the Tribunal she has two sisters, one being the visa applicant who currently resides in Indonesia. The sponsor is an Australian resident having come to Australia with her mother as a student. Her father has passed away. She said the visa applicant has no other relatives in Indonesia except for her young son and the visa applicant has not been married before.

7. The sponsor said her sister became pregnant because of a casual relationship with her child’s father. The father is a man named “William” who it is claimed had been seeing the visa applicant for only a couple of months. According to the sponsor, once her sister told the baby’s father she was pregnant, he became hard to contact and then disappeared. When she tried to call him by phone she found his number disconnected and she then erased it from her phone.

8. The house where the visa applicant currently lives is the review applicant’s cousin house and her sister pays rent for accommodation. The sponsor said the visa applicant had been working for her cousin’s pipe business but ceased when the baby was born and now lives in the house rent free. The Tribunal asked who lives in the house now and the sponsor said two other bedrooms are rented. These rooms are rented on a temporary basis to a family from an Indonesian village that have a child. There used to be a maid who resided in the home but no longer does.

9. The Tribunal asked the sponsor about the Department’s reasons for refusing the visa application that relied heavily on the findings of Departmental officers in Indonesia during site visits to the applicant’s home. The Tribunal noted the written submission prepared by the sponsor’s brother-in-law prior to the hearing refuting the findings. The photos of the house in Indonesia where the visa applicant resides that were submitted in evidence were discussed. In particular, the sponsor stated that the stall-holders near the visa applicant’s residence who told immigration officers who they thought lived in the house were unlicensed and that different vendors were in the area each day. The Tribunal pointed out that all the people in the neighbourhood that were asked said that a man, woman and child lived in the house indicating the visa applicant and her child lived with a man and they appeared to be a family. The sponsor said at the time an older couple were renting a room in the house and they had a son who came occasionally for business purposes. She claimed there were people in and out of the house all the time. The Tribunal noted that the witnesses had claimed to have seen a man, woman and baby going out for walks together indicating a couple with a child coming from the visa applicant’s house. The sponsor said this could not be the case as it was not the Indonesian life-style and not her sister’s usual behaviour either. The sponsor said there are no footpaths to push a pram and the weather is too hot on a daily basis for this to occur. The sponsor said she cannot understand who saw what and how the immigration officers could say something like that. The sponsor said the assumption a family lives in the home is not correct just because a man, woman, child and nanny were living there.

10. The sponsor referred the Tribunal to a news report about a child that was kidnapped and murdered in the area where her sister lives. She said her sister is afraid because although it is a good area, there are poorer areas nearby and criminals in the area. She said these were the kinds of people the immigration officers talked to about who lived in the visa applicant’s home. The sponsor suggested it was to her sister’s advantage that people on the streets thought a couple lived in the house with a child as it would make her safer; however, she reiterated that the man neighbours claim to have seen would have been the son of an older couple who lived there. She said the couple’s son visited the house at that time to assist with his parents business.

11. Regarding the man observed by one immigration officer exiting the residence with a large suitcase while two other officers were inside, the sponsor said it was not feasible someone would sneak out of the house with a large suitcase. Instead she suggested a Taiwanese family next door often had visitors and used taxis to go to and from the airport. In addition, their door was next to the visa applicant’s door. The sponsor claimed the visa applicant saw the immigration officer’s car outside on a corner and from where it was parked; it would not have been possible to tell which door a person had left from. The sponsor referred to photographs of the area around the house to demonstrate where it is claimed the car was parked and why the sponsor says the officers would have had their view obscured.

12. The sponsor said the immigration officers were admitted and left by the side door of the house rather than the main entrance because the front door was kept permanently closed. Further to the issue of a person leaving the house with a suitcase, the sponsor added that it would make more sense for a person to hide to avoid immigration officers rather than exit the premises as claimed.

13. The Tribunal asked about rooms in the house that were locked and not permitted to be accessed by the immigration officers. The sponsor said her cousin who owns the house had stored stock from her business at the house because they were moving premises. She claimed the immigration officers did not ask for the door to the locked room to be opened, they only asked what was in there. The sponsor said the visa applicant could have called her cousin and obtained a key so that entry could be gained to the room if officers had asked. The sponsor believed the immigration officers were overly suspicious of her sister because they had been kept waiting at the door. The sponsor said the visa applicant wished she had been asked to open the door. She also said the officer who claimed to observe a man leaving the house with a suitcase could have taken a picture of the person to demonstrate who it was.

    The Tribunal put it to the sponsor that it was highly coincidental an officer had been asked to observe the outside of the house to see if anyone left while the other officers were inside and someone did, notwithstanding the sponsor claims it was a person exiting the house next door. The sponsor claimed the officers inside would have heard a door open if someone had left the visa applicant’s house while they were inside..

14. The sponsor went through photo evidence to explain why she claims the visa applicant would not have heard the immigration officers knocking. She said her sister was away from the front of the house doing laundry at the time and only found out officers were outside when her child woke up and cried. It is claimed the visa applicant had turned down the volume on her phone so had not heard it ringing either until she went into the baby’s room. The sponsor said that after learning the immigration officers were outside her house, she first had to wash and change the baby before admitting them to the house which accounts for the delay they experienced.

15. The Tribunal asked the sponsor about the security guard who also stated that a family live in the visa applicant’s house. She said it was not clear whose house the officers were asking about and noted that the older couple who it is claimed also lived in the house were never referred to either. The sponsor reiterated that her sister is not a morning person and she would not be out walking her son on the street. The Tribunal referred to the evidence of people spoken to in the neighbourhood who said they knew there was a man who left the house regularly. The sponsor said there was no description of this man and said it could only be the son of the older couple who it is claimed were also residents of the house. The sponsor said neighbours were only presuming that because they had seen a man and a woman and baby, they were a couple with a child.

16. The sponsor said her sister had not been married and had not had a relationship with anyone except for the father of her baby. She said she and the visa applicant had a bad experience in their past with their father abandoning them and then the father of the baby doing the same thing. The sponsor expressed her concern about the visa applicant living as a single mother and stated that she needs the support of her sisters and mother in Australia. The sponsor said there was evidence from a hospital that the visa applicant had paid her medical bills herself when she had her baby and that there was no father at the hospital during the birth.

    Evidence of the visa applicant

17. The visa applicant gave her address in Indonesia and said she lived with her child and a housemaid. She said one of the rooms is usually rented out but is currently unoccupied. When the immigration officers had visited the applicant, another couple had been living there too and their son would sometimes visit them.

18. The Tribunal asked the applicant about the delay in admitting the officers when they came. She said she was not expecting anyone as the officers had come without an appointment. At the time she was washing in another room and her child was asleep. The applicant told the Tribunal she was focussed on her baby who was crying and not feeling very well due to teething. She then heard the telephone ringing but did not reach it in time. The applicant called the number on the phone back and spoke to a female immigration officer. She said she explained she needed to change the baby first and they would have to wait briefly. The applicant said there was also a maid in the house at the time. The Tribunal asked why the applicant had not asked the maid to admit the officers, or to change the baby while she went to the door. The applicant said she needed to change her son herself because he wants her when he is crying. She claimed the maid’s job is to help her so she was occupied in assisting with the nappy. The applicant claimed once that was done, they both went and answered the door to the immigration officers.

19. The Tribunal asked the visa applicant about the father of her child. She said she was introduced to him by a friend and had known him for about a year. Initially they were not that close but the applicant was looking for a relationship. The applicant said he was an Indonesian man named William but she did not know his family name. she claimed it was not unusual for people to have only one name, such as herself.

20. The applicant told the Tribunal that when she told William she was pregnant; he was not happy and said it was not his baby. She claimed they had an argument and she told him it was his baby but he refused to acknowledge it and suggested an abortion as he did not want it. The applicant said William pushed her and hit her during their argument. She said the father of the baby has never seen him and after being told the applicant was pregnant, he avoided her and could not be contacted. The applicant said that after a few months, she lost contact with William so she spoke to her mother and discussed termination of the pregnancy. The applicant’s mother forbade her from terminating the pregnancy.

21. The Tribunal asked the applicant to comment on the Department’s findings that she was living with a male partner at the time of their site visit to her home. She said she did not have a partner. The applicant said the immigration officers were guessing that the male they saw was the father of the baby but they did not have actual proof. She said she is living alone and the only way to earn some extra money is by renting out a room in her house. Regarding the officers’ claims that a man left the house while they were inside, the applicant referred to photos and statements that have been submitted to support her claim there was no one living at the property and no one left the house with a suitcase. She said the person seen must have been a guest of her neighbour.

22. The Tribunal put it to the applicant that a number of people in the area where she lived had told immigration officers that a family consisting of a man, woman and child lived in the house. The applicant refuted this and claimed the people spoken to were not in a position to comment. She said they were just street vendors outside her house. The Tribunal asked why it was that those people were quite specific about who lived there if they did not really know. The applicant said there was another couple living in the house at the time as well as her and her child. The applicant said she would make an oath that the baby’s father is not living with her. The applicant reiterated that the vendors near her home did not know her and were not in a position to comment on the household. The applicant addressed claims that people had seen her and her husband pushing the baby in a pram. She said this was not possible because when they got up in the morning it was too hot to push a stroller around. She questioned who the witnesses actually saw pushing a pram.

23. The applicant said she believed the Department’s decision had been based on suspicion only. She said during the visit when immigration officers were in her home, anyone that wanted to leave would have had to go past them in her living room. The applicant said the decision could affect her life forever and she thought the Department’s decision was unfair. She said all she wants is to live with her sisters and her mother and son. The Tribunal put to the applicant that in her application she claimed to be a single mother and the Department had to verify that information which they did by doing a site visit to her home. The applicant said this may be the case but the information they reported was not true. She believed the immigration officers were looking for reasons to refuse the application.

24. The applicant referred to the written statements she had provided from people she claimed were reliable including the head of the village where she lives and friends. She asked that the Tribunal consider those statements rather than the people spoken to by the Department who do not know her and could not be sure it was her pushing a stroller. The applicant said she did not want to be a burden to Australia, rather she would be able to make a contribution. The applicant referred to criminal activity in her area where a child was killed recently. She said the point was, the people spoken to by the immigration officers were not reliable.

    Evidence of the witness – Sukawaty Mackadam

25. The witness said her sister in Indonesia lives in a house owned by her cousin. She said the family were not aware the visa applicant was in a relationship until she told them she was pregnant and that the father was a man named William who the visa applicant could no longer contact. The witness said she knew her sister had a boyfriend in the past but they had broken up because he was a gambler.

26. Regarding who lived in the house at the time the immigration officers visited, the witness said there was an older couple who had a son who would visit. The witness explained her understanding of the Department’s reasons for refusing the visa application. She said the immigration officers who visited the house had been required to wait outside initially because the baby had been ill and had to be changed. She also referred to the use of the side door and claimed it was because the front door is routinely locked.

27. The witness also refuted the claim that a person seen leaving the premises with a suitcase was the partner of the visa applicant. She said there was a Taiwanese family living next door. The Tribunal asked the witness if she had been to the house where the visa applicant lives and she said she had not but claimed she could see from the photos how the house is positioned. Regarding the neighbours who said a family live in the house, the sponsor said because of the climate, it was impossible for her sister to take the baby out. The Tribunal asked the witness about the number of people who told the visiting officers the same thing; that they believed a husband and wife lived in the house. She said her sister did not know the neighbours and they were only presuming that was the case.

28. It was suggested by the witness that the third immigration officer who claimed to have seen a man exiting the house with a suitcase could have taken a picture or given a description. She disputed that anyone came out of the house and stated that what the immigration officer claimed to have seen was not correct. The Tribunal asked the witness if she has been in Australia for ten years, how she could attest to the visa applicant’s circumstances in Indonesia. The witness said her mother goes there to help the visa applicant and she trusts her mother rather than anyone else. The witness said she last spent time with the visa applicant about a year ago in Bali. The witness reiterated that the visa applicant has had no contact with the baby’s father since she became pregnant.

    Evidence of the witness – Sofia Lelo

29. The witness is the visa applicant’s mother. She said the visa applicant lives with her child and husband. There are also a husband and wife living there. She said she has three daughters and her husband had left her. The witness said she experienced difficulty raising her daughters and she wanted them to be together. When asked about the Department’s decision, the witness said it was not right that the father of the baby was living with her daughter.

1. The Tribunal asked the witness about the circumstances of the visa applicant having her baby. The witness said her daughter was dating a man and she called her mother in Australia and told her she was pregnant. According to the witness, the father of the baby was a man in his forties. The visa applicant was not able to contact the baby’s father by phone and contacted friends but was unable to locate him. She only knew that he had a house in another province in Indonesia. The witness said her daughter had told the man about her pregnancy and wanted him to take responsibility but he disappeared.

2. The witness refuted the findings that the visa applicant was living with a partner in Indonesia. She said she wanted her daughters to be living together in Australia and that the visa applicant is living alone in Indonesia. The witness wants the visa applicant to live with her in Australia and find work.

   Further evidence of the review applicant (sponsor)

3. The Tribunal asked the sponsor to comment or respond to an inconsistency in the evidence where she had said the visa applicant had never been in a relationship before the father of her baby while her sister said the visa applicant had another boyfriend in the past. The review applicant said the previous boyfriend was from a long time ago, from high school and that her family had not approved so she did not really consider that a relationship.

4. The sponsor said she understood the Department could send officers to attend the applicant’s home but they had just presumed the man seen leaving was her husband. She said there had been another man staying in the house so it was understandable people would think it was the applicant’s husband. She reiterated that anyone leaving the house would have been seen by the two officers who were inside. The sponsor also pointed out that none of the witnesses referred to the older couple that were living there. In reference to witnesses claiming to have seen her walking the baby with a man, the sponsor said the applicant does not go out walking with her baby as there are no footpaths and if she does go out, she takes a motorbike taxi instead. The sponsor said the Department wrote in their decision that the applicant refused to open the door to a room in the house but claims her sister was not actually asked to. It was claimed she would have done so if requested.

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 visa applicant is the remaining relative of Ms Verawaty Sriprai who the visa 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).

7. In this case Ms Verawaty Sriprai is the visa applicant’s sister, an Australian citizen, and therefore is an Australian relative for these purposes.

   Is the visa applicant a remaining relative of an Australian relative?

8. To be granted a Subclass 115 visa the visa 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.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

9. 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 visa applicant and is ‘usually resident in Australia’.

10. The visa 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 visa applicant is an adopted child.

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

11. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

12. ‘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.

13. The issue in this application for review is whether the visa applicant was in a relationship with a partner at the time of application in which case, she would not satisfy the requirement that there are no near relatives remaining in Indonesia. Based on the evidence obtained by the Department and the evidence provided by the parties, the Tribunal is not satisfied that the visa applicant has no near relatives except those that are usually resident in Australia and are Australian citizens or permanent residents.

14. The Department refused the visa application on the basis of information that came to light during two site visits in Indonesia on 14 March and 21 May 2014. In written responses to the Department and in statements to the Tribunal, the parties responded to the evidence that led to the refusal. During the Tribunal hearing, the review applicant, visa applicant and witnesses also provided explanations or refuted the Departments findings.

    Consideration adverse evidence and the applicant’s response

15. During the first site visit on 14 March 2014 it was reported that the visa applicant manufactured a delay of 20 minutes in admitting Departmental officers to her home. The visa applicant claimed at the hearing that at the time of the officer’s visit, she was doing laundry and did not hear them. She claimed she only heard her phone ringing when attending to her baby but missed the call. She called the officers back but the applicant said it was then necessary for them to wait a further 10 minutes while she washed and changed the child who was unwell. The applicant and sponsor stressed that it was more important for the applicant to attend to the needs of the crying baby first. The applicant said she did not ask the maid to answer the door because she was assisting with the baby.  The sponsor and applicant referred the Tribunal to photos showing the layout of the house to demonstrate that it was large ant therefore not always possible to hear someone at the front door. Although the applicant’s own room did overlook the front of the house as noted by the Department, the parties claimed the applicant was not in that room at the time.

16. The Tribunal has considered the explanation for the delay in admitting the Departmental officers. While it is possible the applicant did not hear anyone at the front door, once she did become aware of their presence, she would have understood the importance of meeting with them promptly. Although she claimed the baby was ill and needed changing, she could have asked the maid to answer the door, or asked the maid to look after the baby. Alternatively, the applicant could have admitted the officers to her house and asked them to wait inside. None of these things were done. Instead, the applicant claimed that the maid had to assist her with the child for 10 minutes and then they both went to answer the door. The Tribunal finds that a delay of 20 minutes is significant in the circumstances and does not accept the explanation provided.

17. It was reported by immigration officers that the applicant admitted them to her house through a side door and did not permit them to enter a guest room where visitors are usually received. The Department’s reasons for decision stated that she would not open the connecting door between the living room and guest room. The applicant countered during the hearing that the reason the door was locked was because the owner of the house stored property there. The applicant and sponsor also claimed the applicant was not asked to unlock the door to the guest room and if she had been, she would have obtained the key and opened it. The Tribunal has no reason to doubt the evidence of the Departmental officers and finds that the applicant did not want to allow them access to certain parts of the house. When considered in the context of the other evidence from the site visits, this may have been because the applicant’s partner was preparing to leave from that room, but in any case, the applicant would have been aware that it was in her own interest to be completely open and honest and should have allowed access to the locked room when asked. Even in the event she was not asked to unlock the door, the applicant must have known a locked room would be suspicious given the reason for the site visit and she could have offered to provide access herself. The applicant herself stated that she could have obtained the key to open the room.

18. After the immigration office’s site visit, the applicant provided photos inside the locked room showing boxes and items stacked along a wall and several items against the front door of the house. The home owner, Mr Henry Leo claims in his written statement dated 20 September 2014 that he stores valuable personal and business items there and keeps the room locked. He claims Ms Megahwati does not have a key to the main door and entrances and exits occur through the side door. However, as noted above, the applicant could have obtained a key and provided access on the day of the officer’s visit.

19. The applicant and sponsor disputed the Departmental officers’ claims that a man in his thirties was seen leaving the applicant’s house with a suitcase during the site visit. The applicant claimed the officer observing her house must have seen someone leaving her Taiwanese neighbour’s home, not hers. She said the third officer was in a parked car on a corner and did not have a clear view of the front of her house. Photographs were submitted in evidence to demonstrate the position of the house and the corner of the street where it was said the immigration officer’s car was parked. An undated statement was submitted that was said to be from the next door neighbour of the applicant who declared that on the day in question, 14 March 2014, “a man from Taiwan aged about 35 years… left the house where I was on duty and that visitor used a taxi service and had a large suitcase.” The applicant claimed the officer must have been mistaken about which door a man was seen leaving from. The sponsor said officers did not describe the person or take photos which would have identified the man in question.

20. The Tribunal notes that the third officer at the site visit was asked to observe the front entrance of the applicant’s house in particular, in which case they would have ensured an adequate view. In addition, as noted in the Department’s decision and visible in the photos, the applicant’s entrance and that of her neighbour is separated by a thick wall. A man said to be in his mid-thirties was observed leaving the applicant’s house; the officer claimed, and getting into a taxi during the period of observation. Although this person was not photographed or described further, the identity and description of the baby’s father is unknown so no comparison could have been made. The Tribunal finds that this occurrence adds to the weight of evidence that indicates the applicant had a partner at the time.

21. During a second site visit on 21 May 2014, immigration officers spoke to people in the neighbourhood about the occupants of the house where the applicant lives with her son. Departmental officers spoke to four separate individuals; two small shop owners, a tailor who passes the house regularly and a guard hear the Chief of the Neighbourhood’s house, all of whom said they believed a husband and wife lived in the residence with a baby and a nanny. When contacted by phone, the Chief of the Neighbourhood had no record of the residents of the applicant’s house as they had not registered or reported to him.

22. Witnesses claimed to have seen the applicant and a man walking with a pram early in the morning. The applicant and sponsor both claimed that this could not be the case as the applicant is not an early riser and does not go for walks in the morning. They also claimed that the climate is too hot and there are no footpaths along the road.

23. When this evidence was put to the applicant by the Department, a statement by the Chief of the Neighbourhood, Mr Bambang P Putranto dated 19 October 2014 was submitted in which he claims to have checked on the residents of the applicant’s house and had confirmed that Ms Megahwati lives there as single mother with her son and a servant. He also claimed that when he was contacted by an Immigration officer, although he advised that the residents of the house had not provided any registration documents to him, Ms Megahwati has reported orally that she was living at the address. In her response to the Department, and in evidence to the Tribunal, the applicant and sponsor claimed the shop owners, the tailor and the guard spoken to by immigration officers were not reliable and did not know her. It was claimed the shop stalls near the applicant’s home are unlicensed and they and the security officers change often. The applicant said these witnesses were assuming a family lived together in the house, but this was not the case.

24. In her reply to the Department and in evidence provided to the Tribunal, the applicant stated that at the time of the site visit to her house, an older couple had been renting a room but at the time were back in their home town. She said the couple had an adult son who often visited the applicant’s house to help his parents with their business in Jakarta. The applicant claimed that it was this man who the neighbours must have seen leaving her house in the mornings, but he was not her husband. In her statement to the Department, dated 7 July 2014, the applicant said the couple and their son were planning to move out of her house as the man did not want his reputation to be affected and he and his parents did not want to be involved in her problems.

25. The Tribunal has considered the applicant’s response to the Department’s evidence and notes the following. In her written response to the Department and in written and oral evidence to the Tribunal, the couple and their adult son who it was claimed were renting a room have not been named at any time and no witness statements have been provided by them. In addition, none of the neighbours spoken to by the officers mentioned seeing an older couple living in the house. Further to the evidence by the witnesses who stated their belief that a couple with a baby and a nanny live in the house, it was claimed in a written statement dated 21 November 2014 by the sponsor and the applicant’s other sister that “a little clarity must be observed here regarding the motives of an illegal street vendor being questioned by government officials”. The sponsor and her sister suggest that the vendors were being helpful to the officers for their own interests. The Tribunal does not accept this would be the case when four individuals were asked separately and all gave the same account of the residents of the house.

26. At the Tribunal hearing, the applicant’s other sister, Ms Sukawaty Mackadam and her mother, Ms Sofia Lelo gave evidence. The witnesses supported the claims of the visa applicant that she had her baby out of wedlock, has not known the whereabouts of the baby’s father since she told him she was pregnant or had any contact with him, and does not live with a partner. The Tribunal has taken this evidence into account but gives minimal weight to it. The applicant’s mother and sister want the applicant to live with them in Australia and it is in their interest to support her claims that she is a single mother with no near relatives in Indonesia.

    Conclusion

27. The Tribunal has considered all the evidence in response to the Department’s conclusion that the applicant was living with a partner at the time of their site visit.  The Department’s findings at that time were as follows:

    ·     the applicant manufactured a delay in admission to her home;

    ·     she did not want to admit immigration officers to a locked room in the house;

    ·     a man in his thirties was seen leaving the applicant’s residence during the officers’ visit and at the exact time one officer was asked to specifically observe the front of the house for anyone leaving; and

    ·     evidence adverse to the applicant’s claims in her visa application were provided by people in her neighbourhood.

28. In her response to the Department’s reasons for decision, the applicant provided either an alternative explanation to each of the immigration officers’ adverse findings during the site visit (for example, the man seen leaving her house with a suitcase actually left from her neighbours house, not hers) or denied the finding outright (the applicant claimed that she never took her baby out for a walk in the street).

29. Having weighed the applicant’s evidence in response, the Tribunal accepts the evidence that was contemporaneous with the immigration officers’ visit rather than the evidence provided after the fact by the applicant and sponsor in an attempt to refute the findings of fact.

30. On the balance of evidence, the Tribunal finds that the visa applicant was in a relationship and living with a partner at the time the visa application was made. Therefore, she is not a remaining relative of her sister, the sponsor of the application. 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.

31. For the reasons set out above, the Tribunal is not satisfied that the visa 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.115.211 and cl.115.221.

32. The visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.

    DECISION

33. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Wendy Banfield
    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).