1508654 (Migration)

[2016] AATA 3306

1508654 (Migration) [2016] AATA 3306 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Laura Roberts

CASE NUMBER:  1508654

DIBP REFERENCE:  CLF2015/26382

MEMBER:Deborah Morgan

DATE:17 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 17 February 2016 at 9:19am

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 (the delegate) on 12 June 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 5 May 2015. 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 that requires an applicant is the remaining relative of an Australian at time of application.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met at time of application because the applicant’s father and sister are considered to be her near relatives and there was no evidence to show that they are Australian citizens or permanent residents or eligible New Zealand citizens.

4. By email dated 28 January 2016 the Tribunal invited the applicant to a hearing in Perth on 16 February 2016 at 9.30am to be linked by video to a member in Adelaide.  

5. On 5 February 2016 the applicant provided a written response to the hearing invitation in which she stated that she and one other witness would attend the hearing.

6. The applicant failed to appear before the Tribunal at the scheduled time and place.

7. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal has referred to information in the delegate’s decision in these reasons.

10. The applicant was born in Kirkcaldy, Scotland on 3 December 1987. Her father is named as David Ainslie Gove and her mother is named as Julia Margaret Bruin Gove (Department file, folio 27).

11. A statutory declaration submitted to the Tribunal by the applicant’s mother is in the name of Julie Roberts (Tribunal file, folio 7). The Tribunal accepts that the applicant’s mother has used and currently uses the first name “Julie” instead of Julia as stated in the applicant’s birth certificate.

12. The visa application was made on the basis that the applicant is the remaining relative of Mrs Julie Margaret Bruin Roberts, who the applicant claims is her Australian relative (Form 40 of the visa application refers).

13. During the review the Tribunal received statutory declarations from third parties (Tribunal file, folios 5-7) attesting to the estranged relationship between the applicant and her biological father since her birth.

14. 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).

15. In this case, the Tribunal is satisfied that Mrs Julie Margaret Bruin Roberts is the applicant’s biological mother. As stated in the delegate’s decision, the applicant’s mother held a visa entitling her to permanent residence (Subclass 856 ) at time of application. Accordingly, Julie Margaret Bruin Roberts is an Australian relative for the purposes of r.1.15.

    Is the applicant a remaining relative of an Australian relative?

16. 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.

17. 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’.

18. 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.

    Whether the applicant has “near relatives”

19. Regulation 1.15(1)(c) to the Regulations requires an applicant to have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

20. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and includes a person who is a parent, or a sister of the applicant.  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.

21. Information before the Tribunal is that the applicant’s biological father, Mr David Ainslie Gove, and her sister, Ms Terri Dines (who has the same mother as the applicant but a different father) are citizens of the United Kingdom.

22. No documentary evidence has been submitted in relation to the location of the applicant’s biological father, David Gove.

23. Departmental data before the Tribunal indicates that Terri Dines’ movements are under her former  name of Terri Susan Roberts.

24. The Tribunal notes the Department of Immigration’s decision records that Terri Dines is the holder of a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa which is a temporary visa entitling her to remain in Australia for a limited period.

25. The Tribunal is satisfied on the evidence that David Ainslie Gove and Terri Dines, being the applicant’s  biological father and her sister respectively, are both her ‘near relatives’ as defined by regulation 1.15.

26. There is no evidence that either of the applicant’s near relatives, David Gove and Terri Dines are usually resident in Australia or that they are Australian permanent residents or Australian citizens or “eligible New Zealand citizens’ (as defined by the Regulations).

27. For the above reasons, the Tribunal is therefore satisfied that the applicant is not the remaining relative of her Australian relative at time of application.

28. The applicant therefore does not meet clause 835.212 of Schedule 2 to the Migration Regulations.

29. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa.

    Does the applicant meet criteria in the other subclasses in Other Family (Class BU)?

    Subclass 836 Carer visa

30. There is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl.836.212. She therefore is not entitled to the grant of a Subclass 836 (Carer) visa.

    Subclass 838 Aged Dependant visa

31. The evidence before the Tribunal indicates that the applicant was born on 3 December 1987. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for cl.838.212 of Schedule 2 to the Regulations.

32. For the reasons above the Tribunal is satisfied in respect of the three visa subclasses that there is no material which would permit a finding that the applicant meets prescribed criteria for the grant of a visa in Class BU.

    DECISION

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

    Deborah Morgan
    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).