Baladad (Migration)

[2020] AATA 4825

Baladad (Migration) [2020] AATA 4825 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Armando Baladad

VISA APPLICANT:  Mr Jordan Ian Baladad

CASE NUMBER:  1929420

DIBP REFERENCE(S):  OSF2016/044080

MEMBER:Kira Raif

DATE:31 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2020 at 11:46am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – remaining relative of an Australian relative – near relative – visa applicant’s mother resident in the Philippines – visa applicant’s father not registered on birth certificate – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 115.211, 115.221; 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 5 September 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of the Philippines born in June 1982. He applied for the visa on 17 June 2016. The delegate refused to grant the visa on the basis that cl.115.211 was not met because the delegate was not satisfied the 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 31 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 applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.115.211.

6. 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. ‘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’. The visa 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 visa applicant a remaining relative of an Australian relative?

7. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The visa applicant claimed to be a remaining relative of his father, the sponsor. The delegate noted that the applicant’s birth certificate identifies the applicant’s mother but no father has been listed on the birth certificate. As such, the delegate was not satisfied that the visa applicant was related to the sponsor. Further, the visa applicant is recorded to have stated on the application form that his father, step-mother and two siblings were resident in Australia but his mother, Ms Elizabeth Morales, was resident in the Philippines. The delegate found that she was the applicant’s near relative.

8. In oral evidence the review applicant confirmed that the visa applicant’s mother lives in the Philippines but said they do not live together. The review applicant said that his son has not had any contact with his mother since he was six months old. The Tribunal is prepared to accept that evidence but the legislation is not concerned with the nature of the visa applicant’s relationship with a near relative. The mere existence of a near relative, even if there is no contact, would disqualify the applicant from meeting the definition of a remaining relative.

9. The review applicant told the Tribunal that his son went to the place where his mother used to live but they could not find her. Despite that, the Tribunal is not prepared to presume that the mother has passed away. This is because the review applicant’s evidence to the Tribunal is that he has had no contact with Ms Morales since the child was very young and the child was brought up by his parents. In such circumstances, the visa applicant and the sponsor may not have expected to hear from the child’s mother or have contact with her. Any lack of contact, in the circumstances of this case, does not give rise to a presumption of death.

10. The Tribunal is not satisfied finds that the visa applicant’s mother has passed away. There is no evidence that she resides in Australia. The Tribunal finds that she is a ‘near relative’ for the purpose of r. 1.15(1)(c). She is not resident in Australia and is not an Australian citizen or permanent resident or an eligible New Zealand citizen.

11. Further, it is possible that the mother has had other children from other relationships. The review applicant’s evidence is that she left the family when the visa applicant was six months old and has not had contact with the family. If she did have other children, they would be considered the visa applicant’s half-siblings and ‘near relatives’. It is up to the visa applicant to satisfy the decision-maker that he meets the requirements for the visa and, effectively, that he has no near relatives. The parties have not done that. 

12. The Tribunal is not satisfied the visa applicant meets r. 1.15(1)(c) and the definition of ‘near relative’. The visa applicant does not meet cl. 115.211 and cl. 115.221.

13. The visa applicant was born in 1982. He is not old enough to be granted an aged pension and does not meet the requirements for the grant of an aged dependent relative visa. The application was not accompanied by the relevant certificate and the visa applicant has not claimed to be a carer of another person. The Tribunal finds that the visa applicant has not made a valid application for a carer visa and that in any case, he would not meet the requirements for the grant of that visa.

14. For the reasons set out above, the Tribunal is not satisfied that the visa applicant is the remaining relative of an Australian Relative at the time of application and the time of decision for the purposes of cl.115.211 and cl.115.221.

    Conclusion

15. 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

16. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

    Kira Raif
    Senior Member