Deighan (Migration)

[2019] AATA 2751

Deighan (Migration) [2019] AATA 2751 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kathleen Mary Assumpta Deighan

CASE NUMBER:  1825740

HOME AFFAIRS REFERENCE:                CLF2017/76814

MEMBER:Lilly Mojsin

DATE:3 April 2019

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 03 April 2019 at 9:34am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining relative) – relationship to sponsor – applicant is mother of sponsor – no longer eligible relationship criterion – no response to tribunal communication – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cls 835.211, 835.221, rr 1.03, 1.15(1)(a)

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 August 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 24 October 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).

3. The delegate refused to grant the visa on the basis that cl.835.211 and cl.835.221 was not met because the sponsor of the applicant was not a parent, brother, sister, step-brother or step-sister of the applicant.

4. On 31 January 2019 the Tribunal wrote to the applicants, pursuant to s.359A of the Act. The Tribunal invited the applicants to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review. In particular, the Tribunal invited the visa applicant to comment upon the information before it.

5. The information stated that the applicant is the mother of her sponsor, Ciaran Patrick Deighan an Australian citizen and the relevance of the information to the review was that if the applicant for a remaining relative visa, is the mother of her sponsor and the regulations provide that the sponsor of the applicant must be a parent, brother, sister, step-brother or step-sister of the applicant, the applicant does not meet regulation 1.15(1)(a).

6. The invitation was sent to the applicant’s email address, being the address provided in connection with the application for review. The applicant was advised that, if written comments or response was not provided in writing by 14 February 2019, and no extension of time had been granted, the Tribunal may make a decision on the review without taking further steps to obtain her views on the information and she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal did not receive a response to its letter of 31 January 2019 within the prescribed time for responding to the statutory invitation.

8. The review applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The visa application was made on the basis that the applicant is the remaining relative of Ciaran Patrick Deighan 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).

10. In this case Ciaran Patrick Deighan is a a citizen of Australia and therefore is an Australian relative for these purposes.

11. 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.

12. 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’.

13. 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.

14. The applicant is the mother of an Australian relative.

15. As the Australian relative in this review is the son of the applicant, r.1.15(1)(a) is not met.

16. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative 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.

17. 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

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

    Lilly Mojsin
    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).