BHARDWAJ (Migration)

[2018] AATA 2008

BHARDWAJ (Migration) [2018] AATA 2008 (7 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Mamta BHARDWAJ

CASE NUMBER:  1608617

DIBP REFERENCE(S):  CLF2016/30879

MEMBER:Hugh Sanderson

DATE:7 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 June 2018 at 10:26am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Daughter sponsor of the applicant – Other siblings in India – Wrong application filed – Applicant is ineligible – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 31 May 2016 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 19 May 2016. 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 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because as the applicant was the mother of the sponsor, she did not meet the definition of a remaining relative in r.1.15(1)(a)

   Background

4. The applicant is a citizen of India and is currently 63 years old. She claimed that she was widowed, however, did not provide the death certificate of her husband. She did not provide any details in her application of her children or any other relatives. At the time of the application she was 61 years old and was not old enough to be granted an age pension.

5. The sponsor of the applicant is Apurva Bhardwaj. She is a citizen of India. She was granted a Subclass 175 Skilled – Independent visa in 2012 and now has the right to reside permanently in Australia. She claimed to be the daughter of the applicant.

6. The delegate who considered the application noted that the definition of a remaining relative in r.1.15(1)(a) required the sponsor to be a parent, brother, sister, stepbrother or stepsister of the applicant. As the applicant claimed that she was the mother of the sponsor the applicant did not satisfy this criterion and therefore did not meet the definition of a remaining relative. Accordingly, the delegate found the applicant did not meet the criteria in cl.835.212 and refused the application.

7. The applicant appeared before the Tribunal on 7 June 2018 to give evidence and present arguments. The applicant’s daughter and son-in-law also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

8. The applicant said she had two brothers and three sisters who still lived in India. She confirmed the sponsor of the application was her daughter.

9. The Tribunal discussed with the applicant, her daughter and her son-in-law the reasons why the visa application was refused. They agreed the applicant did not meet the criteria for the grant of the visa. They said they got advice from a migration agent when the application was filed and after the Department refused the application the agent told them that the wrong application was filed.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa application was made on the basis that the applicant is the remaining relative of her daughter, Apurva Bhardwaj, 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: 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?

12. 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, which is set out in the attachment to this decision.

    The requirement to be a parent or sibling: r.1.15(1)(a)

13. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

14. The applicant states that they are the remaining relative of their daughter. A daughter or child is not one of the classes of relatives that is applicable when considering if an applicant meets the definition of a remaining relative.

15. The applicant claims to be the mother of the sponsor. Accordingly the sponsor (the relevant Australian relative) is the child of the applicant. As the person who is sponsoring the applicant is not their parent, brother, sister, step-parent, step-brother or step-sister the applicant does not meet the definition of a remaining in r.1.15(1)(a).

    No near relatives: r.1.15(1)(c)

16. 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.

17. ‘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.

18. The applicant stated she had two brothers and three sisters who remained living in India. Accordingly, r.1.15(1)(c) is not met.

    Conclusion

19. 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.

20. As set out 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.

    Advice of Migration agent

21. The applicant was advised by a migration agent, Jujhar Bajwa of Bajwa Immigration Consultants. The advice by this agent to the applicant and her family appears to have been completely incompetent. The application, prepared by the agent, is not completed in full as it does not disclose any of the relatives of the applicant as is required in Part G. The application was misguided from the start as the applicant’s daughter was not a relevant relative to sponsor the applicant for a remaining relative visa. There were alternative visa applications that could have been made, however the agent does not appear to have considered these until after the current visa application was refused.

22. Although the applicant may now consider filing an alternative visa application she and her family have been put to considerable expense and inconvenience as a result of the poor advice that appears to have been given to her by her agent. As far as the current application is concerned, the Tribunal has no option but to affirm the decision to refuse the application.

    DECISION

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

    Hugh Sanderson
    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).