1503596 (Migration)

[2016] AATA 3082

1503596 (Migration) [2016] AATA 3082 (7 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Istvan Pasztor

CASE NUMBER:  1503596

DIBP REFERENCE(S):  CLF2015/6880

MEMBER:Kira Raif

DATE:7 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 January 2016 at 7:31am

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 February 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 is a national of Hungary, born in August 1984. He first travelled to Australia in October 2013 holding a Tourist visa and was granted other visas since then. The applicant applied for the Remaining Relative visa on 4 February 2015. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied the applicant was the remaining relative of an Australian relative. The applicant seeks review if the delegate’s decision.  

3. The applicant appeared before the Tribunal on 12 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Hungarian and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. The visa application was made on the basis that the applicant is the remaining relative of his mother. 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. 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’.

6. 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.

   Is the applicant a remaining relative of an Australian relative?

7. The applicant stated on the application form that he was divorced. He stated that his parents and sibling resided in Australia. The applicant stated that his son, born in 1999, lived in Hungary. The applicant provided to the Tribunal a statement dated 12 March 2015 from his former spouse, Ms Kupecz, which refers to the breakdown of the marriage and the birth of the child in December 2009. Ms Kupecz states that the child remained in the custody of the mother and the applicant pays monthly maintenance. She refers to her second marriage and a child born from that marriage. Ms Kupecz states that she takes care of the child’s ‘complete provision’.

8. The Tribunal accepts the applicant’s evidence that since the divorce he had no custody of the child and had little influence over the child’s daily life, other than through the payment of maintenance. The applicant stated on the application form that he last lived in Hungary in October 2013. That suggests that since that time he had little control over the child. The statement from his former spouse indicates that she takes care of the child. The applicant confirmed in his oral evidence to the Tribunal that his son lives outside of Australia and that his ex-wife and her present husband take care of the child. The applicant said that he pays child support, which is provided by his mother, and other than that he has no involvement in, and no influence over, the child’s upbringing. All such matters suggest that the child is not in the applicant’s daily care and control.

9. In oral evidence to the Tribunal the applicant stated he was not sure the child was his. He said the child does not look like him and at the time the child was born, his wife had affairs. The Tribunal does not find that evidence probative as evidence of the applicant’s paternity. The results of the DNA test had not been provided and the Tribunal is not willing to accept the applicant’s assertions based on the child’s appearance. The applicant requested the Tribunal to arrange DNA testing, however, the child’s mother was unwilling for the child to undergo DNA testing.

10. The Tribunal is mindful of the applicant’s written submission to the Tribunal dated 29 December 2015 in which he refers to his ex-wife’s infidelities and his concerns about the paternity of the child. As noted above, such claims are not sufficient to satisfy the Tribunal that the child is not the child of the applicant. The Tribunal is mindful that the applicant identified the child as his child on the application for and in his subsequent dealings with the Department and the Tribunal. His submission to the Tribunal specifically refers to the chid as his son. The applicant’s claim that he is not the father of the child appears to have been made in response to the primary decision. On the limited evidence before it, the Tribunal does not accept that claim.

11. The Tribunal notes that the applicant identified the child as his child in the application form and in various submissions to the delegate and the Tribunal. The Tribunal finds that the child is the child of the applicant. Having regard to the applicant’s evidence about the child’s living arrangements, the Tribunal finds that the child is not wholly or substantially in the daily care and control of the applicant or the applicant’s spouse or de facto partner. (The Tribunal finds that the applicant does not have a spouse or de facto partner). As the child has not turned 18, the Tribunal finds that he applicant’s son is a ‘near relative’ within the meaning of r. 1.15(2)(ii). He resides in Hungary.

12. The Tribunal is not satisfied that the applicant has no near relatives other than those who are usually resident in Australia. The Tribunal finds that the applicant does not meet r. 1.15(1)(c) and that he is not a near relative of an Australian relative. The Tribunal is not satisfied the applicant meets cl. 835.212.

13. There is no evidence before the Tribunal to indicate that the applicant meets the criteria for the grant of the Aged Dependent Relative and Carer visas. In particular, the applicant is not old enough to be granted an age pension under the Social Security Act 1991. He therefore does not meet the definition of the term ‘aged dependent relative’ in r. 1.03. The applicant does not claim to be a carer and has not provided the relevant Certificate to meet the requirements for the grant of the Carer visa.

14. The applicant refers in his written submission to the Tribunal to his settlement in Australia and his desire to be with his family and to make a contribution to Australia. The Tribunal has also had regard to the character references the applicant provided to the Tribunal. Such matters do not overcome the difficulties of this case. Having found that the applicant has a near relative outside of Australia, the Tribunal has no option but to affirm the decision under review.

    Conclusion

15. 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

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

    Kira Raif
    Senior Member