Bah (Migration)

[2020] AATA 2411

Bah (Migration) [2020] AATA 2411 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Fatmatu Bah

CASE NUMBER:  1910827

DIBP REFERENCE(S):  CLF2018/361411

MEMBER:Kira Raif

DATE:22 June 2020

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 22 June 2020 at 3:10pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – ‘remaining relative’ of an ‘Australian relative’ – no ‘near relatives’ requirement – parents and siblings not resident in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 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 Immigration on 26 April 2019 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 22 November 2018. 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 a remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by teleconference on 22 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. 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). Relevantly to this matter, the primary criteria to be met include cl.835.212.

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. 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’.

7. 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. ‘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 applicant a remaining relative of an Australian relative?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored in this application by her sister. The applicant stated on the application form that her relatives included her two parents and four siblings. The applicant stated that her mother and father were resident in Sierra Leone and that her brother was resident in Indonesia. She did not declare the country of residence of the other three siblings. The delegate found that the applicant’s parents and four siblings were her near relatives who were not resident in Australia.

9. The applicant told the Tribunal in oral evidence that her sister is an Australian citizen and her cousins live in Australia. Her parents and other siblings are outside of Australia. The applicant’s sister told the Tribunal that they did not realise they could not have relatives overseas and thought that  having a relative in Australia was sufficient. The sponsor said that the Immigration officer did not provide them with information.

10. The Tribunal finds that the applicant’s parents and siblings are ‘near relatives’ and, having regard to the applicant’s own advice, they are not resident in Australia. There is no evidence that they are Australian citizens or permanent residents or eligible New Zealand citizens. The Tribunal finds they are ‘near relatives’ for the purpose of r. 1.15(1)(c).

11. The Tribunal finds that the applicant has near relatives who are not resident in Australia and are not Australian citizens, permanent residents or eligible New Zealand citizens. The Tribunal is not satisfied that the applicant is the remaining relative of an Australian relative at the time of application and the time of this decision. She does not meet cl.835.212 and cl.835.221.

12. The applicant was born in April 1994 and she is not old enough to be granted an aged pension. The Tribunal is not satisfied she meets the requirements for an Aged Dependent Relative visa. The applicant has not claimed to be a carer and has not provided evidence with her application of having sought the Carer certificate. The Tribunal finds she has not made a valid application for a Carer visa and would not meet the requirements for the grant of such a visa.

    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