De Bruin (Migration)

[2017] AATA 1840

De Bruin (Migration) [2017] AATA 1840 (26 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Maryna Elizabeth De Bruin
Mr Theunis De Bruin

CASE NUMBER:  1608664

DIBP REFERENCE(S):  CLF2016/16157

MEMBER:Kira Raif

DATE:26 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 26 September 2017 at 11:37am

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Remaining relative of an Australian relative – Mother abandoned applicants at a young age – Sponsor established foster care arrangements – Custody but no formal adoption process – Biological mother lives in South Africa – Compassionate considerations

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 835.212, cl 835.221; r 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 on 26 May 2016 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are two siblings, born in 1994 and 1997 respectively. They applied for the visa on 10 March 2016. They were sponsored in that application by their uncle. The delegate refused to grant the visas on the basis that cl.835.212 was not met because the delegate was not satisfied the visa applicants were the remaining relatives of their Australian relative. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 26 September 2017 to give evidence and present arguments. The applicants requested the Tribunal to take oral evidence from other witnesses but the Tribunal decided not to do so, since the Tribunal accepts the evidence concerning the family background and lack of contact between the applicants and their mother, which is what they specified the evidence of their witnesses would be. 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 applicants are 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).

5. The visa application was made on the basis that the applicants are the remaining relatives 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.

6. 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. Additional provisions apply if the applicant is an adopted child.

   Is the applicant a remaining relative of an Australian relative?

7. The applicants stated on the application form that their mother resides in South Africa and their father is deceased. The applicants provided a number of documents to the delegate and to the Tribunal indicating their mother abandoned them at a young age, that foster care arrangements had been put in place and that the sponsor, who is their uncle, had been providing care to the applicants. The same information was provided in oral evidence to the Tribunal. The Tribunal acknowledges and accepts that evidence and accepts that the applicants’ mother has abandoned them and that the sponsor had been providing the necessarily care to the children since their young age. However, there is no evidence that the applicants had been adopted by the sponsor and the applicants confirmed in oral evidence that there was custody but not a formal adoption process in South Africa and adoption was not available in Australia.

8. The Tribunal finds that neither the formal custody arrangements nor the foster care arrangements between visa applicants and their uncle / aunt sever the applicants’ relationship with their biological mother. That relationship continued irrespective of the fact that the mother has abandoned the children at a young age and has not cared for the children. Despite the quality of that relationship, the Tribunal finds that the biological mother continues to be the mother of the applicants.

9. The Tribunal finds that the applicants’ mother is a near relative within the meaning of r. 1.15(2). She resides in South Africa and there is no evidence that she is an Australian citizen or resident or an eligible New Zealand citizen. The Tribunal finds that the applicants have a near relative who is not in Australia and that they do not meet r. 1.15(1)(c) and r. 1.15. They are not remaining relatives of the sponsor and do not meet cl. 835.212. The Tribunal reaches this conclusion while acknowledging that the applicants may have had little or no contact with their biological mother over a number of years and that they had been in the care of others since young age. The Tribunal also acknowledges a number of supporting statements that had been provided to the Tribunal.

10. The applicants argue that there are compassionate considerations in this case. The applicants explained the relationship with their uncle and aunt and lack of any relationship with their biological mother. The applicants referred to the previous applications that they had made and their attempts to arrange formal adoption.  The Tribunal accepts the entirety of the parties’ evidence. However, the Tribunal has no discretion to recommend the grant of the visa on compassionate grounds. The Tribunal has found that the applicants do not meet one of the criteria for the grant of the visa and must therefore affirm the decision under review. The applicants also requested the Tribunal to refer the matter to the Minister, on the basis of the compassionate considerations in this case. The Tribunal has considered the request but decided not to do so.

11. For the reasons set out above, the Tribunal is not satisfied that the applicants are the remaining relatives of an Australian Relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221. There is no evidence that the applicants are carers of an Australian relative and they are not old enough to be granted the aged pension. They do not meet the requirements for the grant of the Carer and the Aged Dependent Relative visas.

    Conclusion

12. 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

13. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Kira Raif
    Senior Member