Baharum (Migration)

[2021] AATA 3736

Baharum (Migration) [2021] AATA 3736 (27 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Noor Zana Binti Baharum

CASE NUMBER:  1823627

HOME AFFAIRS REFERENCE(S):          CLF2017/12985

MEMBER:Peter Vlahos

DATE:27September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl 835.212 of Schedule 2 to the Regulations

·cl 835.221 of Schedule 2 to the Regulations.

This Statement was made on 27 September 2021 at 8.00AM

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – informal adoption – birth registered by adoptive parents – no documentary evidence of relationship with birth family – DNA testing confirm sibling relationship – no near relatives in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15(c), 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 26 July 2018 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 applied for the visa on 1 February 2017. 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 the delegate was not satisfied that the applicant was the remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 21 September 2021 by teleconference due to the continued Covid-19 state of emergency in Victoria to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, her ‘sister’ and her ‘brother-in-law’.

5. The applicant was not represented at the hearing in relation to the review and there were no other witnesses.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Relevant Law

7. At the time the application was made, the Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Agreed 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 Regulations 1994 (the ‘Regulations’). Relevant to this matter, the primary criteria to be met in this case is cl. 835.212.

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: see, cl. 835.212 and cl. 835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations.

9. The visa application was made on the basis that the applicant is the last remaining relative of her ‘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: see, 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).

   Is the Applicant a remaining relative of an Australian relative?

10. The applicant provided to the Tribunal a copy of the primary decision record. The applicant stated in her application that ‘her sister’ was married to an Australian (her ‘brother-in-law’) and was resident in Australia (granted a permanent resident status).[1] Documents submitted to the Department and Tribunal attested to the fact that the applicant had no other relatives other than those she claimed she had residing in Australia.

    [1] Ms Norlela Binti Carberry (nee Izahar) is an Australian Resident (holding a BB-155 Resident Return Visa)

11. At the hearing, the applicant and her witnesses claimed that the spouse of her sponsor, Ms Norlela Binti Carberry (nee Izahar) was her ‘biological’ sister and her husband her ‘brother-in-law’.

12. Prior to the hearing of this matter by the Tribunal and in her dealings with the Department, the applicant provided a birth certificate[2] which recorded her parents to be Mr. Baharum B Kenot (father) and Ms Zanaib Binti Ahmad (mother) and these two persons were listed as her parents in her application (see, Form 47OF).[3] The applicant also submitted to the Department a ‘birth certificate’ which recorded her name as “Noor Zana.” It is also noted that the applicant’s name on her Malaysian ID Card and Passport was recorded as “Noor Zana Binti Baharum.”[4] The applicant provided no other documents to the Department (in any other names).

    [2] See, Department of Home Affairs file no. CLF2017/12985

    [3] Ibid

    [4] Ibid

13. It was noted by Tribunal that in her application, the applicant declared that she (when she was a small child) had been informally adopted.

14. In support of her claim that she had been the subject of an informal adoption, the applicant submitted a form she had completed and submitted in 2010[5] by her “declared sister” Norela Binti Izahar (Carberry) which declared that her ‘biological mother’ to be Normah Binti HJ Ismail and ‘attempted to correct the information on the applicant’s birth certificate’ (“true name” Nor Afisha Izahar and “true parents” Normah Binti HJ Ismail and Izahar B. Abu Bakar) and declarations[6] from Norela Binti Izahar (Carberry) and Norah Binti HJ Ismail (‘grandmother’ of the applicant and her ‘sister’) stating that they are blood relatives of the applicant. There was also a declaration submitted to the Department by the sponsor declaring that the applicant was given up ‘for adoption’ to Zanaib BT HJ Ahmed by Normah Binti HJ Ismail, who then destroyed the original birth certificate.

    [5] Ibid

    [6] Ibid

15. The Department requested a birth certificate legitimising what the applicant had declared to the Department that is that the applicant was the blood-sister of Ms Norlela Binti Carberry (nee, Izahar). The applicant was unable to provide such a document. The Tribunal noted from the oral evidence presented to it that all parties confirmed that such a document was not possible to be provided from official sources in Malaysia.

16. The Tribunal was told that at the time the informal adoption was made the matter was done on the quiet by her grandmother with the agreement of her mother to provide a childless couple the family knew with a child. The matter proceeded as such. Hence, the applicant’s birth certificate shows that her birth was registered by (her adopted parents) Baharum B Kenot (father) and Zanaib BT HJ Ahmed (mother) on 27 March 1974, six (6) days after the applicant’s birth which was recorded as 21 March 1974.

17. The applicant told the Tribunal (as she and her sponsor had told the Department) that they had no other evidence they could provide to proof of the applicant’s relationship with her ‘grandmother’ Normah Binti HJ Ismail and with her (as she claimed) ‘blood sister’, Ms Norela Binit Izahar (Carberry).

18. As a result of the lack of substantial proof of the relationship as was claimed by the applicant to her sister as her ‘blood-sister’ the applicant was refused.

19. On 18 September 2018 the Tribunal was provided with DNA results[7]. The results of DNQ confirmed that the applicant, Ms Norlela Binti Carberry (Izahar) was the applicant’s sister. The immigration records confirm that Ms Norlela Binti Carberry is an Australian permanent resident and usually resident in Australia. Therefore, the Tribunal accepts the applicant’s sister is Ms Norlela Binti Carberry.

    [7] see, AAT File.

20. On balance, the Tribunal is satisfied that the applicant’s evidence as provided for by a DNA test settles the issue of her relationship beyond doubt with Ms Carberry and the Tribunal accepts that the applicant has no other relatives in Malaysia except for her sister in Australia and her husband and their family. Therefore, there are no other ‘near relatives’. The Tribunal is satisfied there are no near relatives other than those permitted by the Regulations and therefore r. 1.15 (c) are met. The Tribunal is satisfied that the applicant is the remaining relative of an Australian relative at the time of the application and at the time of decision for the purposes of cl. 835.212 and cl. 835.221.

21. Given the findings above, the appropriate course is to remit the application (with the new evidence submitted – DNA test results) to the Department and the Minister’s delegate to consider the remaining criteria of cl.835 visa.

    DECISION

22. The Tribunal remits the application for Other Family (Residence) (Class BU) visa for reconsideration with a direction that the applicant meets the criteria for a subclass 835 (Remaining Relative) visa:

    · cl. 835.212 of Schedule 2 of the Regulations

    · cl. 835.221 of Schedule 2 of the Regulations

    Peter Vlahos
    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).