Chama (Migration)

[2017] AATA 1841

Chama (Migration) [2017] AATA 1841 (26 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Barbara Chama

VISA APPLICANT:  Miss Betty Chama

CASE NUMBER:  1600127

DIBP REFERENCE(S):  F2014/052546 OSF2014/052546

MEMBER:Kira Raif

DATE:26 September 2017

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 26 September 2017 at 2:25pm

CATCHWORDS

Migration – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – Remaining relative of an Australian relative – Two siblings residing in Zambia – Emotional and financial support

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 1 cl 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 12 November 2015 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 Zambia, currently residing in South Africa, born in September 1986. The visa applicant applied for the visa on 18 December 2014. She was sponsored in that application by her sister. 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 the remaining relative of her Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 26 September 2017 to give evidence and present arguments. 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 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.

5. The visa application was made on the basis that the visa applicant is the remaining relative of their Australian relative. 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.

6. 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. It indicates that when making the application, the visa applicant stated on the application form that she had two siblings residing in Zambia. There is no evidence that these two siblings are resident in Australia or are Australian permanent residents or Australian citizens or eligible New Zealand citizens. The Tribunal finds that such siblings are near relatives as defined in r. 1.15(2). The Tribunal is not satisfied the visa applicant meets r. 1.15(1)(c). She is not a remaining relative and does not meet cl. 115.211 and cl. 115.221.

8. The review applicant provided a written submission to the Tribunal in January 2016 outlining the family circumstances and her desire for the visa applicant to live in Australia. She notes that the visa applicant may not be safe if she were to return to Zambia. The review applicant refers to her own family circumstances and her and her husband’s employment. In oral evidence to the Tribunal the review applicant said that she provides emotional and financial support to her sister and the other siblings do not. The review applicant states that her sister is dependent on her. The Tribunal acknowledges and accepts that evidence for the purpose of this review. However, as the Tribunal explained to the review applicant in the course of the hearing, this visa category is not about dependence and establishing financial dependence will not assist the visa applicant in meeting the requirements for visa grant. The visa applicant does have near relatives who are not resident in Australia and for that reason, she cannot meet the requirements for the grant of the visa for which she has applied.

9. There is no evidence that the visa applicant is a carer of an Australian relative and there is no relevant Carer certificate. The visa applicant is not old enough to be granted an aged pension for the purpose of the Aged Dependent Relative visa. The Tribunal is not satisfied the visa applicant meets the requirements for the grant of the Carer visa or an Aged Dependent Relative visa.

   Conclusion

10. 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

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

    Kira Raif
    Senior Member