EL DANNAOUI (Migration)

[2017] AATA 3004

EL DANNAOUI (Migration) [2017] AATA 3004 (5 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Fatme Ahmad El Dannaoui

VISA APPLICANT:  Ms Houwaida Al Dannawi

CASE NUMBER:  1616751

DIBP REFERENCE(S):  OSF2015/054622

MEMBER:Helena Claringbold

DATE:5 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2017 at 7:49am

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – No near relatives except in Australia – Custody and responsibility of applicant's children held by former spouse – Children considered to be near relatives

LEGISLATION

Migration Regulations 1994, r 1.03, r 1.15, Schedule 2, cl 115.211, cl 115.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 19 March 2015, Ms Houwaida Al Dannawi, the visa applicant, applied for an Other Family (Migrant) (Class BO) visa.  The application was made on the basis of her relationship with Ms Fatme Ahmad El Dannaoui, the sponsor and review applicant.

2. On 29 September 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not satisfying cl.115.221 of the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant is the remaining relative of the sponsor.

3. At the time of application, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative.

4. On 30 November 2017, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Ms Dannaoui and two witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic, Arabic (Lebanese) and English languages. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Department’s file    OSF2015/054622, folios numbered 1-115, and the Tribunal file 1616751, folios numbered    1- 30.  The Tribunal has also considered the oral evidence provided at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether the visa applicant is the remaining relative of the sponsor.

8. The visa application was made on the basis that the visa applicant is the remaining relative of the sponsor, who the visa 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).

9. In this case the sponsor is the visa applicant’s sister and she is an Australian citizen. Therefore is an Australian relative for these purposes.

   Is the visa applicant a remaining relative of an Australian relative?

10. To be granted a Subclass 115 visa, the visa applicant must be a ‘remaining relative’ of an ‘Australian relative’ at the time of application, and continue to be a ‘remaining relative’ at the time of decision: cl.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

11. 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 visa applicant and is ‘usually resident in Australia’.

12. The visa 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 visa applicant is an adopted child.

    Does the applicant have other ‘near relatives’ except those eligible citizens?

13. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

14. ‘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.

15. Prior to and at the Tribunal hearing the sponsor and the visa applicant declared the following:  the visa applicant and Mr Waled Omar, the visa applicant’s former spouse divorced in August 2014.  Following the divorce the visa applicant gave the custody of her five children to her former spouse and she has no responsibility for the children.  

16. Documents evidence the visa applicant and Mr Omar’s divorce as taking place on 5 August 2014. An extract of family registration dated 14 December 2015 also provided evidence of the divorce.  It also stated that Mr Omar, at that time, was married to Ms Fatme Merrach. In addition the documents record Mr Omar and the visa applicant as having five children. Other information is that the visa applicant resides separately from her children and Mr Omar and  Mr Omar has full custody and responsibility for the children.  The children are as follows:

    ·Ousama Omar (son) who was born on 23 December 2000, usually resident in Lebanon.

    ·Mu’min Omar (son) who was born on 25 December 2001, usually resident in Lebanon.

    ·Mohamad Omar (son) who was born on 25 May 2005, usually resident in Lebanon.

    ·Zeina Omar (daughter) who was born on 12 January 2008, usually resident in Lebanon.

    ·Bare Omar (daughter) who was born on 8 August 2011, usually resident in Lebanon.

17. The sponsor told the Tribunal that since the visa applicant and her ex-husband divorced, the visa applicant has lived with her cousin.  Other information is that the visa applicant was a victim of family violence perpetrated by her ex-husband and was intimately mistreated by another family member.  She stated that in an effort to control the visa applicant her ex-husband forbid access to the children and would only agree to the divorce on those conditions. Other information is that the visa applicant has no responsibility or input into the children’s lives.  Although more recently the visa applicant has been permitted to see the children for a short time at Eid.  The sponsor went onto to say that the visa applicant does not have any family support in Lebanon and has had and is having a hard life.

    Other considerations

18. The applicant’s migration agent put forward that the visa applicant has no access to her children and they are not wholly or substantially under the visa applicant’s care and therefore she meets the requirement of being a remaining relative of the sponsor.  These matters are addressed in this decision record.

    FINDINGS

19. Although the Tribunal, at face value, is sympathetic to the circumstances of the visa applicant, having considered the evidence individually and as a whole the Tribunal is of the view that the visa applicant’s children are under 18 years old and live with their father, the visa applicant’s ex-husband, in Lebanon.  On the evidence provided by the sponsor, the visa applicant and witnesses the children are in the complete care and control of their father. The visa applicant’s access to the children is limited to a short time at the time of Eid and she has no responsibility what so ever with regard to the children.  The Tribunal is satisfied that the visa applicant’s children are not wholly or substantially in the daily care and control of the visa applicant. As a result the visa applicant’s children are considered to be her near relatives.

20. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

21. Therefore the visa applicant is not considered to be the remaining relative of the sponsor, the Australian relative and does not satisfy cl.115.211 and cl.115.221 of the Regulations.

22. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.

23. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

    Helena Claringbold
    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).