1420315 (Migration)

[2015] AATA 3865

1420315 (Migration) [2015] AATA 3865 (10 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Maria Jackson

VISA APPLICANT:  Ms Delfina Pilar Casaretto

CASE NUMBER:  1420315

DIBP REFERENCE(S):  OSF2014076604

MEMBER:Helena Claringbold

DATE:10 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 10 December 2015 at 7:53am

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 19 November 2014 to refuse to grant Ms Delfina Pilar Casaretto, the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Casaretto applied for the visa on 18 March 2014 on the basis of her relationship with Ms Maria Teresa Jackson.  Ms Jackson appeared before the Tribunal on 9 December 2015.  The Tribunal also received oral evidence from Ms Casaretto.

3. The delegate refused to grant the visa because the delegate was not satisfied that Ms Casaretto has no near relatives other than near relatives who are usually resident in Australia.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department’s file    OSF2014 /056604, folios numbered 1-28, and the Tribunal file 1420315, folios numbered 1- 26.  The Tribunal has also considered the oral evidence provided at the Tribunal hearing.

6. At the time of application, 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 applicant is 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. Relevantly to this matter, the primary criteria to be met include cl.115.211.

   Is the applicant a remaining relative of an Australian relative?

7. 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.

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 visa applicant and is ‘usually resident in Australia’.

9. 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.

10. The visa application was made on the basis that the Ms Casaretto is the remaining relative of her sister, Ms Jackson, the review applicant, who is his Australian relative.

11. Having regard to the evidence in the Department’s file, the Tribunal is satisfied that Ms Casaretto is the sister of Ms Jackson, who is an Australian Citizen (D1, f 4). The Tribunal is also satisfied that, based on Ms Jackson’s oral evidence at hearing, she is usually resident in Australia: as per: r.1.15(1)(b). The Tribunal is satisfied from all the evidence Ms Jackson is the sister, of Ms Casaretto and therefore, a relative of the applicant: r.1.15(1)(a). Accordingly, r.1.15(1)(a), and, r.1.15(1)(b), are met.

    Does the applicant have other ‘near relatives’ except those eligible citizens?

12. 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.

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. Ms Casaretto, must have no ‘near relatives’, with the exception of certain relatives in who are usually resident in Australia.

15. On the evidence before the Tribunal Ms Casaretto’s  family composition is as follows:

    ·Her parents are deceased. 

    ·She has two daughters, Ms Diana Marie Shuman nee Thom who was born on 14 April 1982 and Ms Michelle Teresa Smith who was born on 16 October 1985.  They are both residents of the United States of America.  

16. There is no evidence that Ms Shuman or Ms Smith are Australian citizens, permanent residents or eligible New Zealand citizens.

17. Ms Jackson and Ms Casaretto provided evidence that Ms Smith is married and living in Kettle Falls, Washington and Ms Shuman is recently married and living in San Diego, California. 

18. Ms Jackson and Ms Casaretto said that they are close and have visited each other over the years.  At one stage in an effort to be close to Ms Casaretto, Ms Jackson went to live in the United States of America.  They always felt they would end up living together and as their children have grown and left home they had hoped this would be the case.  They felt they could assist each other and provide companionship and comfort to each other.  Ms Jackson stated that in the future Ms Casaretto would be able to assist care for her as she has some medical conditions. 

19. Ms Casaretto said that she lives independently to her daughters and is alone.

20. On the evidence before the Tribunal, the Tribunal is not satisfied that Ms Cacaretto has no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

21. 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 or the time of decision for the purposes of cl.115.211 and cl.115.221.

22. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa.

23. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for either of the remaining Subclasses.

24. Given the above, the Tribunal has no alternative but to affirm the decision under review.

25. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

    Helena Claringbold
    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).