1509983 (Migration)

[2016] AATA 3562

1509983 (Migration) [2016] AATA 3562 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ryan Robert Ferriere

CASE NUMBER:  1509983

DIBP REFERENCE:  CLF2015/38248

MEMBER:Deborah Morgan

DATE:18 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 18 March 2016 at 11:34am

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 9 July 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 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 which requires an 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’s father and sister are his near relatives and they do not reside in Australia and are not permanent residents or citizen of Australia.

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

5. The Tribunal sent the applicant an invitation to a hearing on 31 March 2016.

6. On 17 March 2016 the applicant’s representative informed the Tribunal in writing that the applicant declined the Tribunal’s offer of a hearing and requested the Tribunal to make a decision on the information before it.

7. The representative further informed the Tribunal that it is the applicant’s intention to seek Ministerial intervention after the Tribunal has decided his application on the grounds that he is affected by compelling and compassionate circumstances.

8. The Tribunal proceeds to make a decision in this case without holding a hearing as requested by the applicant, and, as it is empowered to do under the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The visa application was made on the basis that the applicant is the remaining relative of Ms Pamela Ferriere, who the applicant claims is his Australian relative.

11. 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).

12. In this case Ms Pamela Ferriere is the applicant’s mother. According to Departmental data the applicant’s mother became an Australian citizen on 13 July 2004 and she therefore is an Australian relative for these purposes.

    Is the applicant a remaining relative of an Australian relative?

13. 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.

14. 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’.

15. 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)

16. 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.

17. ‘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.

18. The visa application included the information that the applicant’s father, Mr Robert Ferriere, born on 14 February 1944, is resident in South Africa and his sister, Ms Melissa Ferriere, whose date of birth was not stated, is resident in the United Kingdom.

19. The Tribunal has been requested to decide this case on the information before it.

20. No further information has been provided at review in relation to the residence of the applicant’s father and his sister, Melissa Ferriere.

21. The Tribunal is satisfied that the applicant’s father and his sister Melissa Ferriere are his near relatives because they are his father and his sister and therefore come within the definition of that term as set out above.

22. The Tribunal is satisfied on the evidence before it that the applicant has two near relatives who are not usually resident in Australia and are not Australian citizens or permanent residents. 

23. 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.

    Conclusions

24. 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 and at the time of decision for the purposes of cl.835.212 and cl.835.221.

    Ministerial intervention

25. 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.

26. The Tribunal does not have any evidence before it as to the nature of the compelling and compassionate circumstances claimed by the applicant and has determined not to refer the matter to the Minister in this case.

27. 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.

28. Accordingly, the applicant does not meet the criteria for a Subclass 835 visa.

29. 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. 

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

    DECISION

31. 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).