Dauniseka (Migration)

[2019] AATA 3880

Dauniseka (Migration) [2019] AATA 3880 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Petero Dauniseka

CASE NUMBER:  1730455

HOME AFFAIRS REFERENCE(S):           CLF2016/43528

MEMBER:Ann Duffield

DATE:1 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 01 March 2019 at 12:43pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – close relative of the sponsor – sponsored by the applicants’ cousin – cultural consideration as siblings – assistance provided by family – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.212; rr 1.03, 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 and Border Protection on 14 November 2017 to refuse to grant the review 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 1 December 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.212 and cl.836.321

3. The delegate refused to grant the visa on the basis that the applicant is not a close relative of the sponsor within the meaning of the Migration Act.

4. The applicant appeared before the Tribunal on 1 March 2019 to give evidence and present arguments.

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

   BACKGROUND

6. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

7. The applicant is a citizen of Fiji born on 1 December 1976 (42 years old). The secondary applicant is the applicant’s daughter born on 26 March 2000 (18 years old). However she was removed from the application at the request of the applicant on 5 December 2017 and she has returned to Fiji. The applicant claims to be married and whilst his spouse was included on the original application, as she was offshore when the visa application was lodged she is considered a non-migrating applicant.

8. The applicant first arrived in Australia on a tourist visa with his daughter in 2015. His tourist visa ceased in August 2015 and he has been on a bridging visa since that time in relation to the application subject to this review.

9. The sponsor is a citizen of Australia born on 19 December 1958 (60 years old). She was attributed an impairment rating of 40 by Medical Visa Services in July 2016 in relation to her schizophrenia and lower back pain.

10. The sponsor is divorced and has two children whom she claims works full time and are unable to care for her.

11. The applicant is a cousin of the sponsor and both parties have provided evidence to demonstrate that relationship.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is a close relative of the sponsor within the meaning of the Migration Act.

13. The Tribunal wrote to the applicant on 30 January 2019 putting to him that information he has provided showed that he and the sponsor were cousins and hence would not meet the definition of “close relative” in Regulation 1.03. The applicant was informed that it he and the sponsor were indeed only cousins, that would be a reason, or part of the reason for affirming the decision under review. The applicant was invited to comment on the information.

14. In his response to the Tribunal the applicant has not claimed that they are close relatives as defined in the Migration Act but claim that as a “sister cousin” culturally the sponsor and the applicant are considered by others and themselves as siblings. The applicant has argued that both of their parents came from the same mother and father and whilst this may be regarded as cousins, the Fijian custom and culture consider them siblings.

    APPLICANT CLAIMS TO BE CARER

    Whether the applicant has claimed to be the ‘carer’

15. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s cousin.

    Applicant is a relative of the resident – r.1.15AA(1)(a)

16. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s cousin. The parties have provided documentary evidence to support this claim and the Tribunal accepts that the applicant is the cousin of the sponsor.

    Meaning of Australian relative

17. ‘Australian relative’ means a relative of the visa applicant who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

18. ‘Relative’ is relevantly defined in r.1.03 of the Regulations as a ‘close relative; or grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step grandchild, step aunt, step uncle, step niece or step nephew.

19. ‘Australian permanent resident’ is relevantly defined in r.1.03(b) to mean a non-citizen who, being usually resident in Australia, is the holder of a permanent visa. ‘Eligible New Zealand citizen’ is also defined in r.1.03 of the Regulations. It means a New Zealand citizen who at the time of last entry into Australia, would have satisfied certain public interest criteria and had a certain status.

    Close relative

20. ‘Close relative’ is defined in r.1.03 of the Regulations, in relation to a person, as:

    a.the partner of the person; or

    b.a child (including adopted child), ‘parent’, brother or sister of the person (and their ‘step’ equivalents).

    Conclusion on close relative

21. The parties have not claimed that they are close relatives as defined in the Migration Act but claim that as a “sister cousin” culturally the sponsor and the applicant are considered by others and themselves as siblings. The applicant has argued that both of their parents came from the same mother and father and whilst this may be regarded as cousins, the Fijian custom and culture consider them siblings.

22. The applicant attended the Tribunal hearing and continued to put this argument forcefully and further claiming that if he were required to leave Australia the sponsor would commit suicide, attack other persons or otherwise harm herself, others and her animals.

23. The applicant told the Tribunal that he had been caring for the sponsor for five years and had given up everything to be there for her. The Tribunal told the applicant whilst it had no reason to doubt his claims, he was nevertheless the cousin of the sponsor and therefore did not meet the meaning of close relative. The Tribunal told the applicant that it had no discretion to waive that meaning or to take into account any compelling or compassionate reasons to waive that requirement.

24. The applicant concluded his submissions by stating that after all his sacrifices to care for his “sister” it would be sad to “lose her to a decision by the Tribunal”.

25. The sponsor did not attend the Tribunal hearing.

26. For the above reasons the Tribunal is not satisfied that the applicant is the close relative of the sponsor, but is as he claims the cousin of the Australian relative. The applicant therefore is not a ‘relative’ of the resident within the meaning of r.1.03, and does not meet the requirements of r.1.15AA(1)(a).

    CONCLUSION

27. For the reasons above, the applicant does not meet the criteria for a Subclass 836 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.

28. There is no evidence before the Tribunal that the applicant meets the criteria for another visa class.

    DECISION

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

    Ann Duffield
    Senior Member