1807455 (Migration)

[2019] AATA 3954

1807455 (Migration) [2019] AATA 3954 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807455

MEMBER:Margie Bourke

DATE:23 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 April 2019 at 12:52pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – near relatives – Ministerial Intervention referral – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 835.212; rr 1.03, 1.15

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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 March 2018 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 September 2016. 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 that the applicant is the remaining relative of his Australian relative.

3. 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 met the definitive requirements of remaining relative in r.1.15(1)(c).

4. With the written consent of the applicant, through his representative, the tribunal has proceeded to determine the review on the material before it without conducting a hearing. The applicant, through his representative, acknowledges that he does not meet the criteria of cl.835.212 because he does not meet the definitive requirements of r.1.15(1)(c).

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 [his named sister], 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 [the applicant’s named sister], based on the birth certificates of the applicant and his sister, is the applicant’s sister and based her Australian issued passport 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 declared his parents, two siblings and a son as his near relatives. The applicant does not meet the definitive requirements of r.1.15(1)(c) because both his parents are not usually resident in Australia as they reside and work in Fiji, and his mother is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The applicant’s father is described as his adoptive father, and documents to confirm that [his adoptive father] adopted the applicant have been provided to the tribunal. The applicant has a son who resides in Fiji.

14. Therefore, based on the information provided to the Department and to the tribunal, I am satisfied that the applicant has near relatives other than those who are usually resident in Australia, and are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

15. For these reasons, the tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore the applicant does not meet the requirements of r.1.15(1)(c).

16. 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 for the purposes of cl.835.212.

17. 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

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

    Ministerial Intervention

19. The tribunal considers this an appropriate matter for recommendation to the Minister for consideration under s.351 of the Act, to intervene and replace the tribunal’s decision with a decision that is favourable to the applicant.

20. The tribunal considers the circumstances in the applicant’s case merit this recommendation as there are strong compassionate circumstances that if not recognised would result in serious and ongoing harm to Australian citizens, including the applicant’s girlfriend and her son, the applicant’s two siblings, and the youths the applicant supports through a live in arrangement via [a specified welfare agency].

21. The tribunal considers there would be exceptional economic and cultural and social benefit that would result by the applicant being permitted to remain in Australia as the holder of a permanent visa, including the exceptional responsible work he undertakes as a [profession 1] officer. Further the applicant undertakes volunteer work supporting young people who have encountered difficulties; his volunteer work is exceptional and includes residing with the young people, and consequently through his intense and dedicated support and encouragement to several young people, the applicant makes a substantial difference and assists young persons in difficulties to change their life and gain confidence and experience and the opportunity to live meaningful and valued lives.

22. The tribunal has considered the references and statements from the applicant’s employers, colleagues, family, friends and managers which recognise and emphasise the applicant’s integrity and value, and which clarify the potential loss to individuals and Australia generally if the applicant was not permitted to stay in Australia. The tribunal recommends these endorsements to the Minister.

    Margie Bourke
    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).