Achille (Migration)

[2018] AATA 1014

Achille (Migration) [2018] AATA 1014 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Calum James Achille

CASE NUMBER:  1607888

DIBP REFERENCE(S):  CLF2016/3687

MEMBER:Kira Raif

DATE:6 March 2018

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 06 March 2018 at 3:46pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Remaining relative of an Australian relative – Sister held temporary visa at date of application – Australian citizen or Australian permanent resident

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 835.212, 835.221, r 1.03, 1.15

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 19 May 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 the UK born in May 1985. He applied for the visa on 18 January 2016. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied 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 6 March 2018 to give evidence and present arguments. 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. 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).

6. 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.

7. 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’. 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.

   Is the applicant a remaining relative of an Australian relative?

8. The applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicant identified three relatives in Australia, his parents and his sister. The applicant indicated that his sister was the holder of a Class UK Subclass 820 visa. The applicant confirmed in oral evidence that his sister held the temporary visa when his application was made.

9. The Tribunal finds that the Class UK visa is not a permanent visa. As such, when the application was made, the applicant’s sister was not an Australian citizen or an Australian permanent resident and there is nothing to indicate that she is was an eligible New Zealand citizen. The Tribunal finds that a sister is a ‘near relative’.

10. The Tribunal finds that the applicant has a near relative who, while resident in Australia, was not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied the applicant meets r. 1.15(1)(c)(ii) and finds that he is not a remaining relative of an Australian relative. The applicant does not meet cl. 835.212.

11. There is no evidence that the visa applicant is a carer, there is no relevant Carer certificate, and he is not old enough to be granted the Aged Dependent Relative visa. The Tribunal is not satisfied the applicant meets the requirements for the grant of the Carer visa or an Aged Dependent Relative visa.

12. The applicant provided a number of submissions to the Tribunal. He claims he was given incorrect advice by his migration agent and relied on that advice. The applicant provided a number of statements from third parties and outlines the adverse effect his departure from Australia would have on him and those around him. The applicant repeated this information in oral evidence to the Tribunal. The Tribunal acknowledges these submissions. However, having found that the applicant does not meet one of the criteria for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

    Conclusion

13. 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

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

    Kira Raif
    Senior Member