Alfred Noel (Migration)

[2023] AATA 1767

Alfred Noel (Migration) [2023] AATA 1767 (14 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alfred Noel

CASE NUMBER:  2104938

HOME AFFAIRS REFERENCE(S):          BCC2021/363989

MEMBER:Deputy President Justin Owen

DATE:14 April 2023

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 April 2023 at 1:11pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – no ‘near relatives’ – biological father – lack of any engagement and ongoing relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15; Schedule 2, cls 835.212, 835.221

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 Home Affairs on 1 April 2021 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a 29-year-old male Indian national. The applicant applied for the visa on 9 March 2021. 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 (Cth) (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 at the time of application the applicant had a near relative, his parent and biological father Mr Pooppana Joseph Thomas, who was not usually resident in Australia and was not an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen. The applicant had declared that his parent and biological father’s country of residence is India.  He also declared that his parent and biological father is not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.  The applicant subsequently did not meet subregulation 1.15(1)(c) and did not meet the definition of Remaining Relative at reg. 1.15.  

4. The applicant appeared before the Tribunal on 23 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, his mother Mrs Jaibe Mary Cleophus.

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 Mrs Jaibe Mary Cleophus, who the applicant claims is his 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: reg 1.03. ‘Relative’ is also defined in reg 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 Mrs Jaibe Mary Cleophus is the applicant’s mother and an Australian permanent resident 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 the time of application, and continue to be a ‘remaining relative’ at the time of decision: cl 835.212 and cl 835.221. ‘Remaining relative’ is defined in reg 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: reg 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 reg 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. At the Tribunal’s hearing, the applicant stated he lived with his mother the sponsor and his step-father.  He has been in Australia since 2017 as a student and has studied a Master of Information Technology at Deakin University. 

14. The applicant addressed his relationship with his parent and biological father Mr Pooppana Joseph Thomas both in his oral testimony and in correspondence to the Tribunal dated 17 April 2021. The applicant has submitted that he has had no connection with his biological father from a young age.  He claims to remember him as “an abusive man making life miserable for me, my mother and my brother”. He discussed how he and his brother had been sent to boarding school by his mother, the sponsor, to protect them. The applicant claims that his biological father left the family home around 2005 and has not provided any assistance to himself or his mother since this time. The applicant states from this time until around 2017 his mother, the sponsor, was his sole parent and source of financial support. For this reason, he asked the Tribunal to consider his step-father Mr Joseph Pathikulangara as his immediate relative in place of his biological father. The applicant claims he has no close relatives in India. The applicant claims his mother was concerned about him returning to India as his biological father could be abusive.  

15. The sponsor also provided oral testimony at the hearing as well as correspondence dated 17 April 2021 which reflected the applicant’s submissions. She stated that she separated from her husband, the applicant’s biological father, in 2004 and finally divorced in July 2016.  In her correspondence to the Tribunal, the sponsor states that she moved to Australia in December 2016 after meeting her husband today through a matrimonial website, and married him on 2 December 2017. The sponsor writes that the applicant’s biological father “completely abandoned us while we were struggling mentally, physically and financially with no support”.  The sponsor states that she and her family have no contact with the applicant’s biological father today and are unaware of his whereabouts. 

16. Similar evidence pertaining to the lack of engagement and involvement by the applicant’s biological father in his and the family’s life was also asserted in correspondence dated 18 April 2021 from the applicant’s older brother Mr Joseph Emil Alfred, and his aunt Ms Mary Mitzy Mayne. All have asserted that the applicant’s biological father cannot be considered an immediate relative of the applicant due to his lack of engagement and involvement in the applicant’s life. 

17. On the basis of the evidence before it, the Tribunal accepts that the applicant has had little contact with his parent and biological father Mr Pooppana Joseph Thomas for many years. On the basis of the applicant’s own evidence, his biological father left his relationship with his mother, the sponsor, when he was around 11 years of age.   

18. The Tribunal notes the arguments of the applicant and his family that the lack of any engagement and ongoing relationship between the applicant and his parent and biological father Mr Pooppana Joseph Thomas means that the applicant’s biological father cannot be considered to be an “immediate relative” of the applicant.  That is however not the case in law. 

19. The Tribunal notes that the quality of the relationship between the applicant and his parent and biological father is of no consequence in determining whether the applicant meets reg 1.15(1)(c). The question is simply one of fact: does the applicant have other living ‘near relatives’ – defined in reg 1.15 as a ‘parent, brother, sister, step-brother or step-sister of the applicant’ who are not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, and are not usually resident in Australia?  

20. On the evidence before the Tribunal, the applicant clearly does so: his biological father Mr Pooppana Joseph Thomas who is a parent of the applicant.  The Tribunal notes from the applicant’s Form 47OF Application for migration to Australia by other family members that at Question 58, he has listed under ‘Parents’ his biological father Mr Pooppana Joseph Thomas.  He has listed Mr Thomas’ country of current residence as India and answered ‘No’ to the question ‘is this person an Australian citizen, New Zealand citizen, or Australian permanent resident?’.  In his own evidence, he has confirmed that his father is a resident of India and is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen.  

21. On the basis of the oral testimony, the application and the written submissions of the applicant, supported by the sponsor, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations, and therefore reg 1.15(1)(c) is not met.    

22. The Tribunal finds the applicant’s biological father and parent, Mr Thomas, is not resident in Australia and is not an Australian citizen, permanent relative or eligible New Zealand citizen.  The Tribunal finds the applicant’s biological father is a ‘near relative’ of the applicant.

23. The Tribunal subsequently finds that the applicant does not meet reg 1.15(1)(c). 

24. 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 at the time of decision for the purposes of cl 835.212 and cl 835.221.

25. There is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl 836.212, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

26. The evidence before the Tribunal indicates that the applicant was born on 7 December 1993. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for cl 838.212 of Schedule 2 to the Regulations.

27. 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

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

    Justin Owen
    Deputy President

    
    

    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).