DIMITROV (Migration)

[2018] AATA 3004

DIMITROV (Migration) [2018] AATA 3004 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr DEYAN NEDEV DIMITROV
Master NIKOLA DEYANOV NEDEV

CASE NUMBER:  1817931

DIBP REFERENCE(S):  CLF2017/4061

MEMBER:Kira Raif

DATE:11 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl.835.211 of Schedule 2 to the Regulations.

The Tribunal has no jurisdiction in relation to the second named applicant

Statement made on 11 July 2018 at 8:29am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – PIC4015 Criteria – Court order – Custody granted to father –Temporary travel only – Arrangements made to return child – No consent from mother – Applicant holds visitor visa – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 835.211, 835.225, Schedule 5 PIC4015

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 12 June 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Bulgaria, born in 1972 and 2012 respectively. The applicants applied for the visa on 23 December 2016. The delegate refused to grant the visas on the basis that cl.835.225 was not met because the delegate was not satisfied the Public Interest Criteria (PIC) 4015 was met. The applicants seek review of the delegate’s decision.

3. On 9 July 2018 the application for review made by the second named applicant was withdrawn. The Tribunal finds it has no jurisdiction in relation to the second named applicant.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision in relation to the first named applicant on the materials before it.

   Relevant law

5. 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). Relevantly to this matter, the primary criteria to be met include cl.835.225

6. The issue in the present case is whether the applicant meets Item 4015. It relevantly provides

   The Minister is satisfied of 1 of the following:

   (a)     the law of the applicant’s home country permits the removal of the applicant;

   (b)     each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

   (c)     the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

   Does the applicant meet Item 4015?

7. The application includes the primary visa applicant and his son, the second named visa applicant. The child is a minor child and the applicant claimed he was a member of the family unit when making the application. The Tribunal is satisfied the child is a member of the family unit of the primary visa applicant. The child has not turned 18. The child has made a combined application with the applicant. The Tribunal finds that when the application was made, PIC 4015 applied to the child for the purpose of cl. 835.225.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the application was accompanied by the child’s birth certificate identifying the first named applicant as the father of the child and Ms Radoslava Vasileva Vasileva as the mother of the child. The applicant provided a statutory declaration indicating that he and Ms Vasileva had a de facto relationship but separated in December 2015. The applicant also included a court order signed on 1 August 2016 granting custody of the child to the father but allowing temporary custody to the mother enabling her to have contact with the child during holidays and other occasions. The court order does not provide permission for the child to travel outside of Bulgaria.

9. The delegate wrote to the applicant inviting him to provide evidence that permission had been given for the child’s migration. The applicant replied by providing a further court order dated 13 October 2016 from a regional court in Bulgaria relating to the child’s travel to Australia. It indicates that the mother of the child refused to give consent for the child’s travel to Australia. The judge noted that the applicants held limited duration visitor visas and found there was no evidence that the applicant could take the child abroad and not return. The court granted approval for the child to travel to Australia. However, the Tribunal agrees with the delegate’s finding that this permission was granted on the basis that the child’s travel to Australia would be on a temporary basis only, the permission was granted with express reference to the temporary visas held by the applicants and in such circumstances, the court order does not evidence the court’s permission to remove the child from Bulgaria.

10. The applicant provided a written submission to the Tribunal on 25 June 2018 stating that they plan to send the child to Bulgaria because the child’s mother would not consent to the child being granted a permanent visa. The applicant states that the application was made on the basis that custody was given to the father and the father travelled for a holiday but decided to stay. The applicant states that the Bulgarian courts would not make the decision allowing the child to leave Bulgaria because the child has already left the country and they have to send the child back and conduct a new trial for the child to migrate on a permanent basis. The applicant states that the mother has not reported the child and has not taken any steps in relation to the child.

11. It appears that the child was taken out of the country and that the application for a permanent visa in Australia was made without the consent of the child’s mother. However, the applicant provided evidence to the Tribunal that arrangements have been made for the child to return to Bulgaria. The applicant presented the child’s tickets for travel out of Australia and the review application by the child has been withdrawn. In such circumstances, the Tribunal finds that the child is no longer an applicant for the visa and that PIC 4015 no longer applies with respect to the child.

12. The applicant was the holder of a Visitor visa at the time of the application. The Tribunal finds that he meets cl. 835.211.

    Conclusion

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

14. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cl.835.211 of Schedule 2 to the Regulations.

15. The Tribunal has no jurisdiction in relation to the second named applicant

    Kira Raif
    Senior Member