1602259 (Migration)

[2016] AATA 4127

1602259 (Migration) [2016] AATA 4127 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michael Kenneth Jonathan Henri

CASE NUMBER:  1602259

DIBP REFERENCE(S):  CLF2015/74915

MEMBER:Kira Raif

DATE:14 July 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 14 July 2016 at 3:42pm

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 12 February 2016 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 is a national of Mauritius, born in November 1991. The applicant applied for the visa on 2 February 2015. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied that the applicant was the remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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).

5. 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. 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’.

6. 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.

   Is the applicant a remaining relative of an Australian relative?

7. The applicant stated on the application form that his brother was resident in Australia but his parents resided in Mauritius. He confirmed this in his oral evidence to the Tribunal. The Tribunal finds that parents are ‘near relatives’ within the meaning of r. 1.15(2). There is no evidence before the Tribunal that they are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

8. In oral evidence to the Tribunal the applicant said that his parents are separated and he has nobody to look after him. The Tribunal is mindful that the applicant is an adult and the Tribunal is not convinced that the applicant needs the ongoing care of his parents. In any case, the parents’ residence in Mauritius precludes the applicant from being a remaining relative.

9. The Tribunal is not satisfied that the applicant has no near relatives other than those who are usually resident in Australia and are Australian citizens, permanent residents or eligible NZ citizens. The Tribunal is not satisfied the applicant meets paragraph 1.15(1)(c) of the definition of ‘remaining relative’. The applicant does not meet cl. 835.212.

10. The applicant informed the Tribunal that he would have a better life in Australia and he looks after his niece and that he has better job opportunities in Australia. The Tribunal acknowledges that evidence but that does not enable the applicant to meet the requirement for the grant of the visa. The applicant and his brother informed the Tribunal that they did not understand the law properly and did not know the requirements. The Tribunal is mindful that the applicant has a migration agent who would have (or should have) explained the requirements to the applicants.

11. There is no evidence before the Tribunal to indicate that the applicant meets the criteria for the grant of the Aged Dependent Relative and Carer visas. In particular, the applicant is not old enough to be granted an age pension under the Social Security Act 1991. He therefore does not meet the definition of the term ‘aged dependent relative’ in r. 1.03. The applicant does not claim to be a carer and has not provided the relevant Certificate to meet the requirements for the grant of the Carer visa.

    Conclusion

12. 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.

    DECISION

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

    Kira Raif
    Senior Member