De Silva (Migration)

[2019] AATA 2503

De Silva (Migration) [2019] AATA 2503 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thenahandi Tharanga Niroshani De Silva

CASE NUMBER:  1816909

DIBP REFERENCE(S):  CLF2017/42885

MEMBER:Margie Bourke

DATE:11 June 2019

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 11 June 2019 at 1:26pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 835 (Remaining Relative visa) – applicant has relatives reside in Germany – r.1.15(1)(c) is not met– 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 28 May 2018 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 12 June 2017. 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). Relevantly to this matter, the primary criteria to be met include cl.835.212.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied the visa applicant was a remaining relative within the meaning of regulation 1.15.

4. The applicant appeared before the Tribunal on 27 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother and sister who attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of Thenahandi Chandika Chithral De Silva, 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).

7. Based on the birth certificates of the visa applicant and her brother, which record they have the same parents, I am satisfied that the visa applicant and her brother are full siblings, and close relatives within the definition of r.1.03. Based on the visa applicant’s brother’s certificate of Australian citizenship, granted in September 2016, I am satisfied that he is an Australian citizen.

8. In this case Thenahandi Chandika Chithral De Silva is the applicant’s brother and is an Australian citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

9. 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.

10. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

11. 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.

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

12. 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.

13. ‘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.

14. Based on the oral and written evidence provided by the applicant, including the death certificates I am satisfied that the applicant’s parents are deceased. Based on the oral and written evidence provided by the applicant I am satisfied that the applicant has three siblings. I am satisfied that the applicant has one sister and one brother, who both attended hearing, and who both provided certificates of Australian citizenship. I am satisfied that the applicant has two siblings who are Australian citizens.

15. In the application form and in the Form 80, the applicant recorded that she had a brother who resided in Germany. In her oral evidence at the hearing the applicant stated she had a brother with whom she had no contact but who resided in Germany. The applicant stated her brother who resided in Germany was not an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

16. Based on the written and oral evidence of the applicant I am satisfied that the applicant has a near relative, namely a brother, who is not usually resident in Australia and who is not an Australian citizen, permanent resident or eligible New Zealand citizen.

17. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore the applicant does not meet the requirements of r.1.15(1)(c).

18. Therefore the Tribunal is not satisfied that the applicant is the remaining relative of an Australian relative at the time of application for the purposes of cl.835.212.

19. 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

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

    Margie Bourke
    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).