Cross (Migration)

[2017] AATA 2299

Cross (Migration) [2017] AATA 2299 (14 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joel William Cross

CASE NUMBER:  1608531

DIBP REFERENCE(S):  CLF2016/10069

MEMBER:Kira Raif

DATE:14 November 2017

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 14 November 2017 at 5:03pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining relative) – Not a remaining relative of an Australian relative – Applicant’s father is in the UK

LEGISLATION

Migration Act 1958, ss 65

Migration Regulations 1994, rr r.1.03, 1.15, 1.15(1)(c)(ii), 1.15(2), 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 24 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 is a national of the UK born in May 1985. He applied for the visa on 11 February 2016. 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 the remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 November 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 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). The visa application was made on the basis that the applicant is the remaining relative of 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).

5. 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. The 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 applicant a remaining relative of an Australian relative?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that applicant stated on the application form that his mother, step-father and five siblings were resident in Australia, however the applicant’s biological father, Mr Steven Cross, was resident in England. The Tribunal finds that the applicant’s biological father is a ‘near relative’ within the meaning of r. 1.15(2).

7. The Tribunal acknowledges the applicant’s oral evidence that he has had no contact and no relationship with his biological father for many years but the law is not concerned with the quality of the relationship between the applicant and his near relative. The father continues to be a ‘near relative’ whether or not he has provided any support to the applicant or had any contact with him.

8. The Tribunal finds that the pap has a near relative who is not resident in Australia and who is not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied the applicant meets r. 1.15(1)(c)(ii) and finds that he is not a remaining relative of an Australian relative. The applicant does not meet cl. 835.212 and cl. 835.221.

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

   Conclusion

10. 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

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

    Kira Raif
    Senior Member