1419253 (Migration)

[2016] AATA 3501

1419253 (Migration) [2016] AATA 3501 (11 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bijesh Chand Chaudhary

CASE NUMBER:  1419253

DIBP REFERENCE(S):  CLF2014/134079

MEMBER:Catherine Wall

DATE:11 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2016 at 9:49am

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 20 November 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. Mr Bijesh Chand Chaudhary is a 58 year old citizen of Fiji. He applied for the visa on 7 November 2014 and his application is sponsored by his brother, Mr Pratap Chand Chaudhary, who is an Australian citizen. 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.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the applicant has 2 children and a brother residing in the USA, therefore he does not satisfy the definition of ‘remaining relative’ as set out in r.1.15(1)(c).

4. A copy of the decision record was submitted to the Tribunal by the applicant for the purposes of the review.

5. Mr Chaudhary appeared before the Tribunal on 10 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from his brother, Arun Chaudhary and from his father, Mr Lakhmi Chand.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the remaining relative of Pratap Chand Chaudhary, 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).

8. The Tribunal is satisfied that Bijesh Chand Chaudhary and Pratap Chand Chaudhary are brothers, on the basis of birth certificates which show that they share the same parents. The Tribunal is satisfied that Pratap Chand Chaudhary became an Australian citizen on 24 October 1995, as evidenced by a certificate of Australia citizenship.

9. In this case Pratap Chand Chaudhary is the applicant’s brother, and is an Australian citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

10. 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.

11. 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’.

12. 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.

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

13. 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.

14. ‘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.

15. Mr Chaudhary signed an Application for migration to Australia by other family members Form 47OF on 5 November 2014. In Part G of the form he was asked to provide details of all his family members and their country of current residence. He said that his brother Ajay Chand resides in the USA. He said that his daughter Pooja Chaudhary, aged 35 years, and his son Vishal Chaudhary, aged 33 years, also reside in the USA.

16. Mr Chaudhary stated in the application form that he has no knowledge of his brother’s whereabouts in the USA as they had a family dispute some years ago. He said that he has no knowledge of his children’s whereabouts as he was divorced a long time ago.

17. At hearing Mr Chaudhary confirmed that he brother and children reside in the USA. He told the Tribunal that he has neither seen, nor had any communication with, his children since 1989. When asked how he knows that they reside in the USA, Mr Chaudhary said that their relatives in Fiji have told him. He is not sure if they are citizens or residents of the USA.

18. Mr Chaudhary told the Tribunal that his brother Ajay had a dispute with the family a number of years ago and there has been no contact since that time. Again, he has heard from the Fiji community that Ajay resides in the USA.

19. The Tribunal explained to Mr Chaudhary that the Regulations do not require the applicant to have any contact with, or ongoing relationship with, the near relative. The issue to be determined is whether he has a near relative other than those permitted by the Regulations.

20. There is no evidence before the Tribunal that Ajay Chand, Pooja Chaudhary and Vishal Chaudhary are Australian citizens, permanent residents or eligible New Zealand citizens who are usually resident in Australia, and Mr Chaudhary made no claims in this regard.

21. On the basis of the evidence before it, the Tribunal is not satisfied that there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

22. As Mr Chaudhary has turned 18 years of age, the Tribunal finds that r.1.15(1)(d) does not apply.

23. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application and time of decision for the purposes of cl.835.212 and cl.835.221.

    Other considerations

24. The Tribunal notes that Mr Chaudhary submitted an array of medical reports regarding his father’s health conditions. He asked if the Tribunal can consider if he is eligible for a carer visa, as he has been caring for his parents since he has been in Australia. The Tribunal said that he does not satisfy the requirements of cl.836.212, as there is no evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. Mr Chaudhary is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

25. The evidence before the Tribunal indicates that Mr Chaudhary was born on 24 July 1957. The Tribunal finds that he is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as he is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that Mr Chaudhary meets the definition of ‘aged dependent relative’ in r.1.03 for cl.838.212 of Schedule 2 to the Regulations.

    DECISION

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

    Catherine Wall
    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).