1503933 (Migration)

[2015] AATA 3793

1503933 (Migration) [2015] AATA 3793 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rosan Camille Argao

CASE NUMBER:  1503933

DIBP REFERENCE(S):  CLF2014/137941

MEMBER:Alan Duri

DATE:1 December 2015

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 01 December 2015 at 3:46pm

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 11 March 2015 to refuse to grant Ms Argao an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Argao was born in 1986 in the Philippines.  She last arrived in Australia on 17 June 2013 on a Subclass 572 student visa.

3. Ms Argao applied for the visa on 26 November 2014 on the basis that she is the remaining relative of her brother Mr Arnold Argao, an Australian permanent resident.  In her visa application she indicated that her father is deceased and that her mother, stepfather and two brothers all reside in Australia.    

4. The delegate refused to grant the visa on the basis that cl.835.212 was not met because Ms Argao’s father also has a child Nicole Ignacio Argao, who was born 4 June 2011.  There is no evidence that this child is an Australian citizen, permanent resident or eligible New Zealand citizen.

   Hearing

5. Ms Argao appeared before the tribunal on 1 December 2015 to give evidence and present arguments.

6. Before the hearing the tribunal received a variety of material including statements from various family members.

7. Mr Argao told the tribunal that she has never married and has no children.  However she indicated that she was in a de facto relationship with John Dominic Caaway, who came to Australia as her dependent on the student visa application.  Ms Argao told the tribunal that she and Mr Caaway separated in July 2014 and she has no lost contact with him.

8. The tribunal asked Ms Argao about her relatives.  She said that her biological parents had three children, herself and her two brothers.   Ms Argao indicated that her biological father abandoned the family ten years ago.  However her father (through one of her cousins) contacted her when he was on his death bed.

9. Ms Argao told the tribunal that he step father has never previously been married and that he has no biological children. 

10. Ms Argao told the tribunal that she was never aware of the existence of her half-sister until being informed by the department.  She stated that she has subsequently contacted her cousin who confirmed the existence of her half-sister.  Ms Argao indicated that to her knowledge her half-sister lives in the Philippines and has never been to Australia.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa application was made on the basis that Ms Argao is the remaining relative of her brother Mr Arnold Argao. 

12. 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.

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

13. The only question at stake in this case is the requirement under r.1.15(1)(c) that Ms Argao 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-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. It is common ground that Ms Argao’s biological father has a daughter born in 2011.  This daughter lives in the Philippines and has never lived in Australia.

16. The tribunal accepts that Ms Argao was unaware of the existence of her half-sister until recent times.  (This is corroborated by a letter supplied to the tribunal that was written by Ms Argao’s paternal uncle.)   However the fact remains that Ms Argao has a half-sister living in the Philippines.  

17. The tribunal accepts that Ms Argao has no relationship with her half-sister and in fact has never met her.  The Regulations make no distinction as to the quality of the relationship between any near relatives and only takes into account whether or not a person has near relatives as defined in r.1.15(2).  There is no requirement in the Regulations that the near relatives need to be in communication with each other or any requirement that any the near relatives have any particular type of emotional relationship, or indeed need to have even met.

18. It follows that the tribunal is not satisfied there are no near relatives other than those permitted by the regulations.  Therefore r.1.15(1)(c) is not met.

19. This means that Ms Argao is the remaining relative of an Australian relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.

20. Ms Argao 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 she meets prescribed criteria for the visa sought.

21. During the hearing the tribunal noted that the Minister has powers under the Migration Act to substitute a decision made by the tribunal with a decision that is more favourable to the applicant. Generally, the Minister will only do so if there are compelling, compassionate or humanitarian considerations. The tribunal notes that Ms Argao can make a request directly to the Minister.

    DECISION

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

    Alan Duri
    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).