1500395 (Migration)

[2016] AATA 3204

1500395 (Migration) [2016] AATA 3204 (10 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Keegan Alan McCrostie

CASE NUMBER:  1500395

DIBP REFERENCE(S):  CLF2014/131686

MEMBER:Michelle Grau

DATE:10 February 2016

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 10 February 2016 at 9:41am

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 6 January 2015 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 29 October 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’s biological father was not residing in Australia as an Australian citizen or permanent resident or eligible New Zealand citizen and therefore the applicant had a near relative and did not meet r.1.15.

4. While the tribunal set the matter down for hearing on 3 February 2016,the applicant sought a postponement and this was granted as he would be overseas and a new date of 10 February was given for hearing.

5. The applicant appeared before the Tribunal on 10 February 2016 to give evidence and present arguments.

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 his mother, 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. In this case Paula McCrostie is the applicant’s mother who was granted permanent residence on 23 October 2013 and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

9. 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.

10. 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’. As well 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.

11. 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.

12. The issue in this case is whether the applicant has no ‘near relatives’ as defined in r1.15(1)(c).

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. The applicant has a mother (the sponsor) and father.  According to the applicant’s birth certificate his father was born in New Zealand in 1967.

15. According to his statement the applicant has no contact details for his father and is not sure of where he lives, his marital status or whether he has any children. He also declared he was not married or in a defacto relationship and did not have any children.

16. At review the applicant provided a letter stating he saw his father about 10 times during the first five or six years of his life and there has been no contact since. The applicant’s mother tried to contact the applicant’s father prior to her move to Australia in July 2011 to advise of their plans but the letter (sent to the father’s last known business address) was returned unopened. Since they moved to Australia there has been no contact with his father for 13 years. They have no information about his whereabouts, marital status or other children.

17. At hearing the applicant provided a letter from his mother which stated they he had applied for this visa and sought review on the advice of the mother’s local MP in Roma. 

18. However, the tribunal explained the legislation and requirements for the visa at hearing. The tribunal noted that even though the applicant has not had contact with his father for many years, this is not a relevant consideration in the requirements for the visa and the tribunal has no discretion in that regard. The legislation requires that he have no near relatives other than those prescribed. The tribunal noted unless his father is deceased or usually resident in Australia as an Australian citizen, permanent resident or eligible New Zealand citizen, the applicant would not meet the definition of remaining relative, which was a requirement for the visa.

19. The applicant confirmed at hearing that he had not been in contact with his father since he was 5 years old in New Zealand. He said they had searched New Zealand records for a death certificate in 2014 but there was no record of his death.

20. While the applicant has had no contact with his father since he was 5 years old, the tribunal considers he is the applicant’s parent and therefore ‘near relative’ as defined by the legislation.

21. Further, the tribunal does not accept the applicant’s father is deceased. The tribunal does not accept the common law presumption of death applies as the applicant would not have received communication from him as he was not in contact in the normal course.  Further, a search by the applicant in 2014 of the New Zealand deaths register failed to find any record of death of his father. In the circumstances, the tribunal does not accept the applicant’s father is deceased.

22. There is no evidence that the applicant’s father is an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is usually resident in Australia.

23. The tribunal finds the applicant has a biological father who was born in New Zealand and is not deceased.  On the evidence before it the tribunal finds the applicant has a near relative who is not usually resident in Australia and is not an Australian citizen or permanent resident or eligible New Zealand citizen.

24. 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. As a result, the applicant does not meet cl.835.212.

25. 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

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

    Michelle Grau
    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).