Angok (Migration)

[2020] AATA 4500

Angok (Migration) [2020] AATA 4500 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chol Angok

VISA APPLICANTS:  Ms Rachael Achol Deng Angok
Mr Deng Manyang Angok
Mr Panyang Manyang Angok

CASE NUMBER:  1930686

DIBP REFERENCE(S):  2016/047249

MEMBER:Kira Raif

DATE:12 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 12 August 2020 at 1:31pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – remaining relative of an Australian relative – near relative – review applicant accepted the financial responsibility for the family – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 115.211, 115.221, 115.321; r 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 30 August 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 27 September 2016. The delegate refused to grant the visas on the basis that cl.115.211 was not met because the delegate was not satisfied the first named applicant was a remaining relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The review applicant appeared before the Tribunal on 12 August 2020 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, 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.

6. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. To be granted a Subclass 115 visa the 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.

7. ‘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 visa applicant and is ‘usually resident in Australia’.

8. 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. ‘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.

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

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated on the application form that her brother (the sponsor) was resident in Australia, that her mother was deceased and that her father and another sibling were resident in Kenya. The delegate confirmed that these relatives were not Australian citizens or permanent residents of Australia.

10. The review applicant provided a written submission to the Tribunal on 17 July 2020 explaining his relationship with the visa applicant and the need to provide financial support to the family. The review applicant refers to their father’s poor health, stating that it is difficult for him to support the family. The review applicant provided the same information in his oral evidence to the Tribunal, stating that their father is not able to provide for the family due to poor health, and he has accepted the financial responsibility for the family. The Tribunal accepts that evidence. However, the Regulations are not concerned with the relative’s capacity to provide care and support, nor with the applicant’s relationship with a near relative. The mere existence of a near relative would disqualify the applicant from meeting the statutory definition of ‘remaining relative’.

11. The Tribunal finds that the visa applicant’s father and sibling are ‘near relatives’ for the purpose of r. 1.15(1)(c). They are not resident in Australia and are not Australian citizens, permanent residents or eligible New Zealand citizens. The Tribunal finds that they are the visa applicant’s ‘near relatives’. The visa applicant does not meet r. 1.15(1)(c) and she is not a remaining relative of her Australian relative, as required by cl. 115.211 and cl. 115.221. The remaining applicants do not meet cl. 115.321 and there is no evidence that they meet the primary criteria for the grant of the visas.

12. The visa applicant was born in 1990 and she is not old enough to be granted an aged pension. She does not meet the requirements for the grant of an Aged Dependent Relative visa. The application was not accompanied by the relevant Carer certificate and the visa applicant does not claim to be a carer. The Tribunal finds that she has not made a valid application for a Carer visa and would not have met the visa requirements for that visa.

    Conclusion

13. For the reasons above, the 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 visa applicant meets prescribed criteria for the visa sought.

    DECISION

14. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Kira Raif
    Senior Member