1511028 (Migration)

[2016] AATA 3452

1511028 (Migration) [2016] AATA 3452 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Malcolm Ernest Park

VISA APPLICANT:  Miss Louise Park

CASE NUMBER:  1511028

DIBP REFERENCE(S):  OSF2010/081241

MEMBER:Kira Raif

DATE:9 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:

·cl.115.224 of Schedule 2 to the Regulations

Statement made on 09 March 2016 at 8:45am

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 8 July 2015 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of the UK born in October 1974. She applied for the visa on 13 May 2010. She was sponsored in that application by her father.  The delegate refused to grant the visa on the basis that cl.115.211 and cl. 115.221 were not met because the delegate was not satisfied the applicant was the remaining relative of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favour\able decision ‘on the papers’. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations.

5. The visa application was made on the basis that the visa applicant is the remaining relative of her father, who the visa applicant claims is their Australian relative. To be granted a Subclass 115 visa the visa 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.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations.

6. 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 visa applicant and is ‘usually resident in Australia’.

7. The visa 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 visa applicant is an adopted child.

   Is the visa applicant a remaining relative of an Australian relative?

8. When making the application, the review applicant provided to the Tribunal a copy of the primary decision. It indicates that the delegate wrote to the visa applicant seeking additional information about her family composition. The applicant did not respond to the delegate’s request and as a result, the delegate was not satisfied the applicant was the remaining relative of the sponsor. The review applicant explained in his submission to the Tribunal that the delegate’s request was not received. He provided to the Tribunal completed form 40 and a copy of the visa applicant’s divorce. The review applicant advised the Tribunal that the visa applicant was currently single.

9. The delegate made the decision on the basis that the applicant failed to present the requested documents. The Tribunal acknowledges that the review applicant has now presented all the evidence that was requested by the delegate before the primary decision was made. As such, the Tribunal considers the appropriate course is to remit the matter to enable further assessment to be undertaken of the visa criteria.

10. There is no evidence before the Tribunal to indicate that the visa applicant has previously been to Australia. The Tribunal is satisfied that she meets cl. 115.224.

    Conclusion

11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 115 visa.

    DECISION

12. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:

    ·cl.115.224 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member