1730636 (Migration)

[2019] AATA 3870

1730636 (Migration) [2019] AATA 3870 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730636

DIBP REFERENCE(S):  OSF2012/001259

MEMBER:Jane Marquard

DATE:26 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for the first, second and third named applicants for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:

·cl.115.211 of Schedule 2 to the Regulations;

·cl.115.221 of Schedule 2 to the Regulations;

·cl. 115.311 of Schedule 2 to the Regulations; and

·cl.115.321 of Schedule 2 to the Regulations

The Tribunal affirms the decision not to grant the fourth named applicant an Other Family (Migrant)(Class BO) visa.

Statement made on 26 March 2019 at 10:30am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 115(Remaining Relative visa)– Federal Circuit Court remittal – Australian relative is usually resident in Australia – death certificates provided – visa applicant had no near relatives – decision under review remitted for the first, second and third named applicants – decision under review affirmed for the fourth named applicant

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.12, 1.15, Schedule 1, Schedule 2, cls 115.211, 115.221, 115.311, 115.321

CASES
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
Ignatious v MIMIA [2004] FCA 1395
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The primary visa applicant in this case is Ms [B]. She was born in [year] and is from Kabul, Afghanistan. She works as an [Occupation 1]. Included in her application are her husband, daughter and her husband’s niece.

2. Ms [A] claims to be the remaining relative of her sister, Ms [A], the review applicant, who is an Australian citizen.

3. The visa applicants applied for Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act) on 15 March 2012.

4. A delegate of the Minister for Home Affairs refused to grant the visas on 11 March 2014 as the delegate was not satisfied that cl.115.211 was met. Clause 115.211 requires that the primary visa applicant be the remaining relative of an Australian relative.

5. On 6 August 2015 the Administrative Appeals Tribunal (the Tribunal) differently constituted, affirmed the decision of the Department dated 11 March 2014. The Tribunal had concerns about the honesty of the review applicant as she had failed to include her brother’s name in an application for her own XB-204 visa. Further, in relation to a different application, when sponsoring her sister-in-law under a different name, she had not declared that her sister-in-law had previously been refused a visa. The Tribunal differently constituted was not satisfied on the evidence provided that the primary visa applicant’s husband’s family were all deceased.

6. On 1 December 2017 the Federal Circuit Court of Australia remitted the application for review to the Tribunal for reconsideration.

7. This is the reconsidered review of the decision of the Department of Home Affairs (the Department) dated 11 March 2014.

8. The review applicant appeared before the Tribunal on 18 December 2018 to give evidence and provide arguments. She had two support persons with her – her son and granddaughter. A number of witnesses also appeared at the Tribunal to give evidence, and the primary visa applicant gave evidence by telephone. The applicant was represented at the hearing. A Dari interpreter assisted at the hearing.

9. In submissions to the Tribunal, the representative submitted that the fourth named visa applicant, [is] no longer dependent on the primary applicant and they were awaiting confirmation that she would withdraw. Ms [A] said that [the fourth named visa applicant] is now over 25 years old and they are not sure where she is, but she is travelling in Europe.

10. At the time of application 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 applicants are 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. Relevantly to this matter, the primary criteria to be met include cl.115.211.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In coming to a decision in this matter, the Tribunal has taken into consideration evidence before the Department, the Tribunal as it was differently constituted, and this Tribunal. The evidence is summarised in the findings below.

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

12. The visa application was made on the basis that the primary visa applicant is the remaining relative of the review applicant, Ms [A]. The primary visa applicant claims Ms [A] is her 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).

13. A copy of a family tree and a copy of Ms [A]’s Certificate of Citizenship dated 10 March 2006 are on the Department file.

14. The Tribunal is satisfied on the basis of the documents provided that Ms [A] is the primary visa applicant’s sister, and is an Australian citizen and is therefore an Australian relative for these purposes.

15. To be granted a Subclass 115 visa the primary 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, which is set out in the attachment to this decision.

16. 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’.

17. The primary visa applicant, together with her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia.

    The requirement to be a parent or sibling: r.1.15(1)(a)

18. On the basis of the family tree and other evidence before the Tribunal, the Tribunal is satisfied that the primary visa applicant is the sister of Ms [A], who is an Australian citizen. As the Australian relative in this case is the sister of the applicant, r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

19. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of r.1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

20. The Tribunal is satisfied on the oral evidence before the Tribunal, and Departmental movement records, that Ms [A] is usually resident in Australia.

21. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

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

22. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

23. ‘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.

24. In the application to the Department, it was submitted that the primary visa applicant had no near relatives besides those in Australia, as both her own, and her husband’s relatives were deceased.

25. The primary visa applicant submitted to the Department that her father and her mother [were] deceased, killed in a rocket attack. In an interview with the Department the review applicant said that her father died during the Mujahedeen era and her mother prior to this. She also claimed that her brother [was] deceased. He was ‘martyred during the civil war’. He was married to a [woman], and they had 2 daughters and three sons. She claimed that she had no other siblings.

26. The primary visa applicant also stated that her spouse’s parents, [were] deceased as were his [siblings]. She claimed that they were all killed in a rocket attack. She claimed that [her spouse’s parents] were ‘martyred’ during the war. [The fourth named visa applicant]  at aged [age] years old, was left in the care of the primary visa applicant after the death of her parents. She confirmed that her husband had no other siblings.

27. The primary visa applicant told the Tribunal formerly constituted that her father had been killed in a rocket attack. Her brother [was] hit by a rocket in mujahidin time. She said that her husband had [brothers and a sister] who were all killed in a rocket attack. Ms [A] told the Tribunal formerly constituted that Ms [A]’s husband’s siblings were killed in a rocket attack in a house. She told the Tribunal previously constituted that she thought that Ms [A]’s brother had died 20 years previously.

28. The following death certificates, issued by the Public Registration Office, Daibouri, Kabul, were provided to the Tribunal:

    ·[Mother] (cause of death ‘natural causes’, date of death 1986/7);

    ·[Father] (cause of death ‘type of illness – illegible’, date of death 1992);

    ·[Ms] [A]’s brother (cause of death ‘the almighty’s dispensation’, date of death [1993]) ;

    ·[Husband]’s mother (cause of death ‘divine destiny’, date of death 1994);

    ·[Husband]’s father (cause of death ‘illness’, date of death [1981]);

    ·[Husband]’s sister (cause of death ‘illness’, date of death [1981]);

    ·[Husband]’s brother (cause of death ‘ divine destiny’, date of death, 1994);

    ·[Husband]’s brother (cause of death ‘divine destiny, date of death 1994).

29. The representative confirmed that the death certificates now provided had correct translations, as there was initially an issue with the translations.

30. At the Tribunal hearing, Ms [A] said that the primary visa applicant had applied to the administrative offices in Afghanistan to obtain the death certificates. She was asked why they had not obtained these certificates earlier, considering they had applied for this visa in 2012. Ms [A] responded that she had not known they were required until she discussed the matter with her lawyer.

31. The primary visa applicant was telephoned to give evidence. She was asked how she obtained these death certificates. She said that she went to the registration office for births and deaths in Kabul, which is the formal source of such documents. She said that the reason she did not provide them earlier was because she was not asked for them.

32. The representative said that the documents could be ‘verified’. Asked about this at the Tribunal hearing he said that the source of the documents could be independently checked as they have come from an official source, the Public Registration Office, Department of Civil Status Registration. He made this suggestion as he was aware that there were credibility concerns about the issue of documents in Afghanistan. He submitted that the information in the death certificates was consistent with the claim that three members of the visa applicant’s husband’s family had been killed in a rocket attack, as the date of death was recorded as 1994.

33. The primary visa applicant was asked how her parents and brother were killed. She said that her mother passed away first and she died from natural causes. Her father was injured by a rocket, which injured his hips, and he also had respiratory issues and passed away as a result of this. Her brother was returning from work when a rocket exploded killing 70 people. He was killed, leaving behind his family, including five children and his wife.

34. Both the delegate of the Department and the Tribunal member in the Tribunal as it was previously constituted took into account the fact that the review applicant had previously provided incorrect information to the Department.

35. The Tribunal put these issues to the review applicant, stating that these issues would be reasons or part of the reason for affirming the decision under review as they indicated that she displayed dishonesty in providing information to the Department and Tribunal. She said that she has told the truth and her evidence before the Tribunal was also true. She said that if she made mistakes, it is because this matter has been going on for a long time and her brain function is not good.

36. The first issue discussed with the review applicant was that she had failed to include her brother as a deceased person in her own application form for an SB-204 visa, or in the family tree submitted to the Department. When this was put to her by the Tribunal formerly constituted, she responded that she knew that she had a brother who had been martyred and she could not recall what was on her visa application. Her daughter, who gave evidence at the hearing of the Tribunal formerly constituted, said that she could not recall what was on the application and could not explain why the brother had been left off the visa. At the Tribunal hearing she said that this was a mistake and she promised to tell the truth before the Tribunal. She said that at the time her situation was not good. When she went to the United Nations High Commission for Refugees to apply she was living in Iran. She did not fill in a form, instead she was interviewed, and she feels that they may have omitted to include the correct information. She had lost her husband, father and brother, and her situation was difficult. She said that she definitely told them about her brother who was killed. Her son was missing because of the Taliban at the time and it was a difficult time for her. Even now she cries when she thinks about that time. Her brother’s wife and children were granted asylum in the USA. They were registered in Turkey and from there went to the USA about two years ago.

37. The second issued discussed with the review applicant was that she had sponsored her sister-in-law to come to Australia in 2007 and 2010 in different names. The applications were both refused. She told the Tribunal formerly constituted that the applications were lodged in different names because her sister-in-law was known under different names by one part of the family, and by another name for a different part of the family. The Tribunal as it was formerly constituted asked her why she had filled in ‘no’, on a personal particulars form (Form 80) in the 2010 application, when asked if the applicant had previously been refused citizenship of another country, when in fact the applicant had been refused in 2007. She told the Tribunal formerly constituted that she had completed the form but did not understand the question at the time and did not know that the answer provided was incorrect. At the Tribunal hearing she said that she does not know anything about this matter. However when a girl is with her parents before marriage and is going to be married, she is given a nickname. Her first name is ‘[Name 1]’ and they call her ‘[Name 2]’.  She is known by two names. She herself has a different name she is called by her in-laws. The Tribunal also asked her why she did not inform the Department in 2010 that her sister-in-law had earlier been refused a visa. She said that she did not have a representative at that time. She was working in a restaurant so one of the customers helped her fill out the form. She told him about her brother, and how he had left his wife and children behind when he was killed. The customer filled in the form on the basis of oral information provided to him. They did this on the street. He did not read the questions and answers back to her. She was asked if at the time she understood the importance of providing correct information and telling the truth to the Australian government. She said that she did not understand the law or regulations. She said that it was ‘perhaps a mistake, she does not know if his English was very good either’. He had sympathy and wanted to help her. She said that she could understand how decision-makers might think she is not telling the truth but she did not understand the laws and processes at the time. 

38. [Ms C], the first cousin of the primary visa applicant, gave evidence at the Tribunal hearing. She grew up in Afghanistan but has lived in Australia for 14 years.  She confirmed that her two sisters are deceased. She was asked if she was aware of how the review applicant’s parents died. She said that her aunt passed away after illness, and she went to the funeral. Her uncle was killed by a rocket attack and was taken to the hospital where he died. She knew their brother as well. He was killed by a rocket before she came to Australia.

39. Ms [C] said that the visa applicant has no relatives in Afghanistan besides her two brothers-in-law. She was asked if those two brothers are still alive. She said that she did not know. She said that the brothers were alive when she lived in Afghanistan but she does not know now. She said that she came to Australia fourteen years ago.  She was asked if she socialised with the brothers in Afghanistan and she said that she saw them before she left. She said that the situation in Afghanistan is volatile and it is tense there. 

40. [Ms D], a family friend, also gave evidence at the Tribunal hearing. She stated that she knew the review applicant because their mothers were friends. Ms [D] came to Australia in 1990. When she came to Australia the review applicant’s mother had passed away and while here she lost her father. When the review applicant arrived in Australia, Ms [D] asked her about her brothers and sisters, and she said that she lost her brother, and her sister, an [Occupation 1] was in Afghanistan with her husband. She said that she did not have any further information to provide.  

41. [Ms E] , the review applicant’s daughter also gave evidence at the Tribunal hearing. She said that she came to Australia in 2003 aged about 17 or 18. She knew the visa applicant who is her aunt and her aunt’s husband, and members of his family, before she came to Afghanistan. She knew that he had a mother and did not remember his brother or sister but knows that they were killed in a rocket attack in the house. His mother passed away after they left the country. The brothers and sisters were killed a long time ago, but she did meet [one of the brothers] when she was little. She thinks it was him. This was before the attack.

1. She said that she is a hundred percent sure that her aunt and uncle have no other relatives in Afghanistan. Her aunt only had her sister, who is [Ms E]’s mother, and now in Australia, and her brother and his family. Her uncle was killed in a rocket attack. [Ms E] was asked why Ms [C] had told the Tribunal that the visa applicant’s brothers-in-law were alive before she left for Australia. Ms [A] said that Ms [C] had forgotten to say that in-between moving to Australia she had lived in Pakistan. Ms [A] commented that earlier Ms [C] had said that her sisters were alive when they are not which indicates that she may be overwhelmed by giving evidence at the Tribunal. She said that she is sure that her aunt has no relatives in Australia.  

2. The review applicant was asked about the evidence of Ms [C] that she had seen her brothers-in-law before leaving the country. The review applicant said that Ms [C] is very sick. She meant that she had seen them a long time ago, before coming to Australia. Although she said she saw them before she left, she meant a long time ago and could not clearly explain herself. The Tribunal said that it had asked her when she left Australia if they were still alive, and she said yes. The review applicant said she had a memory problem as this happened a long time ago.

3. [Ms C] was called back to give further evidence to the Tribunal. She confirmed that she saw the brothers ‘before’ she came to Australia. However after she left Afghanistan she lived in Pakistan for six or seven years before coming to Australia. She was asked if [Mr F]’s brothers were alive before she went to Pakistan. She said that she cannot remember exactly. She heard that the brothers were killed in a rocket attack. They were living in [Suburb 1], a suburb of Kabul, and they came to know there was a rocket attack in [Mr F]’s house in [Suburb 1]. She said that this was before they went to live in Pakistan. Asked how she could see them if they had been killed in [Suburb 1], she said that then they left and went to live in Pakistan.

4. On 30 June 2019 the Tribunal wrote to the primary visa applicant requesting further information in relation to a number of matters.

5. The Tribunal asked if the fourth named visa applicant [was] a dependent of the primary visa applicant. Advice provided to the Tribunal on 5 March 2019 was that she was no longer a dependent and was not a near relative. They had been advised that she was 25 years old, may be in Europe and that she no longer lived with the main applicant.

6. The Tribunal asked if the primary visa applicant’s [daughter] was a dependent as she had turned 18. It was submitted that she is completing unpaid work experience and was wholly dependent on her parents. A certificate was provided confirming that she was working unpaid [as] of 20 November 2018, and confirming her address was the same as her mothers. A certificate undated was provided for the primary visa applicant certifying that she was [as] an [Occupation 1].

7. The Tribunal asked for other information about the deaths of [the husband’s siblings], including for example, newspaper articles about the attack. The Tribunal indicated that Ms [C] said that she left for Australia in 2004 and prior to that was in Pakistan for six or seven years. Thus it appeared as if she left Afghanistan in around 1997 or 1998. She said that she thought that the applicant’s brothers-in-laws were alive before she left. However the death certificates indicated that she left in 1994. No articles were provided although eyewitness accounts of the deaths were provided, as discussed in the paragraph below.

8. The Tribunal suggested that country sources indicate that deaths are not systematically registered in Afghanistan, and certificates only issued on demand by local authorities, which does make it difficult to verify the information in the certificates. The Tribunal asked for comments on the procedures used for obtaining the death certificates and the evidence provided to the authorities in order to show that the relatives had died, or whether this information was already on a register. The primary visa applicant provided a copy of the application for death certificates for the brothers-in-law, addressed to the Ministry of Interior, Office of the Second-in-Command, the Directorate of Birth and Death Registration, Office of Registration. The letter stated that Mr [Mr F] i[had] lodged an application at the Department of Death Registry in order to obtain the death certificates for the death of his brothers: [and] his [sister]. The letter said that he had told them family members were killed in 1372 when their house was hit by a rocket. A number of witnesses certified to the Department that they knew of these deaths. One was [a] neighbour.  Another was [another] neighour. The certification was signed by the representative.

9. A certification from [Mr F], the primary applicant’s husband, stated that at District no 1 he lodged an application for death certificates for three family members martyred by a rocket, which landed and exploded in the house. He first visited a Private Application Writer who assisted him. The District Office handed him an inquiry letter about the death certificate to be completed by the Suburban Representative. After gathering information and eyewitness accounts from neighbours the Representative certified the deaths. Subsequently he submitted the identification documents and birth certificates of the deceased persons and the inquiry letter to the District Officials. They then registered and certified the deaths.

10. The Tribunal has considered carefully all the written and oral evidence. The Tribunal is satisfied that there are reasonable explanations for the omission of relevant information in earlier documentation provided to the UNHCR and Department by the review applicant in relation to other visas. In relation to the 204 visa, she has told the Tribunal that she provided the information to the UNHCR in Iran in an interview. It was at a time when she was particularly distressed as her son was suspected to be abducted by the Taliban and she had lost other family members. She does not know how the information was not included. The Tribunal is satisfied that it is reasonable in these circumstances that information may have been omitted, but in any event, the Tribunal is satisfied that her brother was killed on the basis of consistent information given about his death in various forums. In relation to the two applications for the review applicant’s sister-in-law, the Tribunal is satisfied that the names provided for her sister-in-law were different because she had been called different names in Afghanistan, and that it was an honest mistake that she had not stated that her sister-in-law had been earlier refused a visa. She has described a customer of a restaurant filling in the form for her on a street, due to language problems. It is perceivable in these circumstances that incorrect information was inserted. In relation to the visa application the subject of this review, the Tribunal is satisfied that the review applicant was aware of the importance of telling the truth and that the information she and the visa applicant provided to the Tribunal is consistent and credible.

11. The Department and Tribunal formerly constituted were not satisfied that the visa applicant had no near relatives in Afghanistan. The applicants have now provided death certificates and other documentation to this Tribunal. The Tribunal notes that deaths are not systematically registered in Afghanistan and certificates are only issued on demand by local authorities.[1] However in this case, the Tribunal is satisfied on the basis of the death certificates, together with other information that the relatives listed in the death certificates are deceased. The Tribunal notes that the death certificates appear to be issued by the Public Registration Office, Population Authority, which appears to be the appropriate authority, although the document is translated so the name is slightly different.[2]  The certificates state that other documentation was seen by the authority, including the tazkeras. Further, evidence has been provided by the primary visa applicant’s husband of the process of obtaining these certificates, which included submitting eyewitness accounts of the rocket attacks to the authority. These eyewitness accounts have been provided to the Tribunal. There is nothing on the face of the documents provided to suggest that they are not genuine documents. The Tribunal is satisfied, based on the certificates themselves, the eyewitness accounts and the credible evidence of the applicants and witnesses, that the primary visa applicant’s relatives in Afghanistan are deceased, and that the primary visa applicant’s spouse’s relatives are also deceased. While the applicant had some initial concerns about Ms [C]’s evidence that she had ‘seen’ the visa applicant’s brothers-in-law prior to leaving Afghanistan, in later testimony it became apparent that she was aware of a rocket attack on their home and that it was possible that she had seen them at an earlier time. The Tribunal is satisfied that the primary visa applicant’s husband’s niece is not a near relative and is no longer living in Afghanistan. The Tribunal is not satisfied that the primary visa applicant has any parents, siblings or children of herself or her spouse living in Afghanistan.

    [1] United States Department of State (Bureau of Consular Affairs), 2014, Afghanistan Reciprocity Schedule: Documents, < Department of Foreign Affairs and Trade, DFAT Country Report Afghanistan, 26 March 2014

12. The Tribunal is satisfied therefore on the basis of documentation provided, witness evidence and the evidence of the applicants that the primary visa applicant has no near relatives in Afghanistan other than those permitted by regulations, and therefore r.1.15(1)(c) is met.

    Conclusion on cl.115.211/115.221:

13. For the reasons set out above, the Tribunal is satisfied that the first named visa 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.115.211 and cl.115.221.

    Secondary applicants

14. Regulation 1.03 provides that ‘member of the family unit’ has the meaning set out in r.1.12. This rule provides that a person is a member of the family unit if they are the partner, child, grandchild or dependent single relative of the visa applicant. A child is a dependent child if they are over 18 and are and have been for a substantial period immediately before that time, wholly or substantially reliant on their parents for financial support to meet basic needs for food, clothing and shelter.

15. Based on the documentary evidence provided the Tribunal is satisfied that the second and third named applicants are the husband and daughter of the primary visa applicant. The Tribunal is satisfied based on the documentary and oral evidence provided that although the daughter is now over 18 she is wholly dependent on her parents for financial support to meet basic needs for food, clothing and shelter and that she has been for a substantial period immediately before that time. Evidence was provided that she is undertaking unpaid work experience. As there is no evidence to the contrary, the Tribunal is also satisfied that her reliance is greater than any reliance on any other person or source. As the second and third named applicants are the spouse and dependent child of the primary visa applicant, they are members of the family unit of the primary applicant pursuant to r.1.12. The Tribunal is also satisfied that they have made combined applications with the primary visa applicant.

16. The Tribunal is therefore satisfied that the second and third named applicants meet cl. 115.311 and cl.115.321.

17. The Tribunal is not satisfied that the fourth named applicant is a member of the family unit of the primary visa applicant. The fourth named applicant is the niece of the primary applicant’s husband. The evidence of the primary visa applicant is that this niece is now 25 years old, is no longer dependent on the visa applicant and is living in Europe of unknown whereabouts. On the basis of the evidence of the applicant, the Tribunal is satisfied that the fourth named applicant is no longer dependent on the primary visa applicant and is therefore not a member of the family unit of the primary visa applicant. The Tribunal is not satisfied therefore that she meets cl.115.321.

    Conclusion on cl.115.311/115.321:

18. The Tribunal is satisfied that the second and third named applicants meet cl.115.311 and cl.115.321.

19. The Tribunal is not satisfied that the fourth named applicant meets cl.115.321. Thus, the  fourth named visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the fourth named visa applicant meets prescribed criteria for the visa sought.

    DECISION

20. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for the first, second and third named applicants for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa are met:

    ·cl.115.211 of Schedule 2 to the Regulations;

    ·cl. 115.221 of Schedule 2 to the Regulations;

    ·cl. 115.311 of Schedule 2 to the Regulations; and

    ·cl. 115.321 of Schedule 2 to the Regulations.

    The Tribunal affirms the decision not to grant the fourth named visa applicant an Other Family (Migrant) (Class BO) visa.

    Jane Marquard
    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).