1512722 (Migration)

[2016] AATA 3726

1512722 (Migration) [2016] AATA 3726 (11 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Michael Evans

CASE NUMBER:  1512722

DIBP REFERENCE(S):  CLF2015/13735

MEMBER:Rieteke Chenoweth

DATE:11 April 2016

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 11 April 2016 at 5:19pm

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 28 August 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 March 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.

3. The delegate refused to grant the visa on the basis that cl.835 212 was not met because the applicant has two children who are under the age of 18 and are not wholly and substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).

4. The applicant appeared before the Tribunal on 5 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Katie Dent the applicant’s de facto partner and Mr Edwin Evans, the father of the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of Edwin Evans who the applicant claims is their Australian relative. 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).

7. In this case Edwin Evans is the applicant’s father and is an Australian citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

8. 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.

9. 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’.

10. 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)

11. 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.

12. ‘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.

13. The applicant completed a Form 54 “family Composition” on 21 May 2015 in which he stated he has two children who live in the UK. His children, Cameron Evans, born 11 June 1999 and Kai Hussain, born 2 February 2008 live in the UK with their respective mothers.  The applicant has had no contact with the children for many years and does not know the children’s home addresses. He said that if he passed them in the street he would probably not recognise them.

14. At the hearing the applicant told the Tribunal he had initially been told to apply for a child visa by his migration representative in Western Australia. He had spent a considerable amount of money on this not understanding that he could not meet the requirements for that visa. He was then encouraged to apply for the present visa.  He said he had signed the forms completed by the representative and had never intended to hide the fact that he had two children with whom he has no contact and who live in the UK.

15. On the basis of the evidence provided the Tribunal is satisfied the applicant has two children who have not turned 18 and are not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner.

16. 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.

17. 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 the time of decision for the purposes of cl.835.212 and cl.835.221.

18. For the reasons above, the applicant 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 the applicant meets prescribed criteria for the visa sought. The applicant was born on 10 August 1980 and therefore does not meet the criteria for a Subclass 838 (Aged Dependent Relative) visa.  There is no evidence before the Tribunal that he is the carer of an Australian resident relative and therefore does not meet the requirements for a Subclass 836 (Carer) visa.

    DECISION

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

    Rieteke Chenoweth
    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).