1509379 (Migration)

[2016] AATA 3459

1509379 (Migration) [2016] AATA 3459 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lindsay Elder Whitelaw

CASE NUMBER:  1509379

DIBP REFERENCE:  CLF2015/34393

MEMBER:Deborah Morgan

DATE:4 March 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 04 March 2016 at 5:40pm

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 25 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 9 June 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 the applicant to be a remaining relative of an Australian relative.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the applicant had failed to provide evidence of his relationship with his claimed Australian relative and because his parents reside in Scotland.

4. The Tribunal invited the applicant to a hearing on 18 March 2016.

5. The applicant’s representative informed the Tribunal by letter dated 3 March 2016 that the applicant wished the Tribunal to decide this application ‘on the papers’ without holding a hearing. The representative submitted that the delegate‘s decision was “just” because the applicant’s parents are based overseas and for that reason the Tribunal has no option but to affirm the decision under review.

6. The representative further stated that appealing the delegate’s decision gives the applicant the option of seeking Ministerial intervention which he intends to so after the Tribunal’s decision is made.

7. The applicant was represented in relation to the review by his registered migration agent.

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 was born in Kenya on 21 September 1987. He is a citizen of the United Kingdom.

10. The applicant’s brother, Fraser Martin Whitelaw, is resident in Australia.

11. The applicant’s parents Douglas Dixon Whitelaw and Elspeth Martin Whitelaw are residents of Scotland.

12. The applicant first arrived in Australia on 8 July 2010.

13. The applicant was granted a Subclass 820 visa on 2 August 2013 and that visa was cancelled on 3 July 2015 because the spouse relationship had ended.

14. The visa application failed to state the name of the person who the applicant claims is his Australian relative and did not include a Form 40 to identify his sponsor.

15. For the above reasons the Tribunal fails to be satisfied on the evidence that the applicant has an Australian relative for the purpose of this application.

    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.

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

19. 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.

20. ‘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.

21. The evidence in the visa application is that the applicant’s parents reside in Scotland.

22. For this reason, the Tribunal is not satisfied that there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c ) is not met.

23. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application for the purposes of cl.835.212 or at time of decision for the purposes of cl.835.221.

    Ministerial intervention

24. On occasions the Tribunal refers cases to the Minister of Immigration and Border Protection for consideration of Ministerial intervention. In doing so the Tribunal takes into account the Minister for Immigration and Border Protection’s guidelines that are promulgated as to the types of matters which are likely to attract the Minister’s intervention.

25. The Tribunal has considered the grounds stated in the representative’s letter dated 3 March 2016 but has determined not to refer the matter to the Minister in this case.

26. For the record, the applicant is at liberty to refer his case to the Minister for intervention if he wishes to do so.[1] 

    [1] Information about the process is contained on the Department of Immigration’s website at >

    For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application or at time of decision.

27. Accordingly, the applicant does not meet the criteria for a Subclass 835 visa. In respect of the other visa subclasses in Class BU there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. Specifically, the applicant has not claimed and there is no material before the Tribunal that indicates the applicant is entitled to apply for a Carer visa or an Aged Dependant Relative visa. 

28. Based on the findings above, the applicant does not meet the requirements for the grant of the visa and the decision under review must be affirmed.

    DECISION

29. 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).