Elliott (Migration)

[2020] AATA 2410

Elliott (Migration) [2020] AATA 2410 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Donovan Luke Elliott

CASE NUMBER:  1836521

DIBP REFERENCE(S):  CLF2018/13567

MEMBER:Kira Raif

DATE:24 June 2020

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 24 June 2020 at 12:23pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – ‘remaining relative’ of an ‘Australian relative’ – no ‘near relatives’ requirement – whereabouts of biological father unknown – half siblings – no meaningful relationship – presumption of death not applicable – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 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 30 November 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 was born in May 1988. He applied for the visa on 19 February 2018. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied the applicant was the remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by teleconference on 24 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s parents. The applicant was represented in relation to the review. 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 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.

5. 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’.

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. 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.

7. ‘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.

   Is the applicant a remaining relative of an Australian relative?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed to be a remaining relative of his step-father. The applicant stated in the application that his mother and step-father were resident in Australia. The delegate wrote to the applicant seeking information about his father. The applicant provided a number of statements claiming, essentially, that his mother was never married to, and was not in a de facto relationship with the applicant’s biological father. It is claimed that the whereabouts of the father was unknown. The applicant also claimed that his biological father had five or six children from other marriages.

9. The applicant provided further evidence to the Tribunal on 17 June 2020. The statement provided by the applicant confirms that neither he nor his mother and step-father have had any contact with his biological father and they do not know whether he is alive. The applicant provided other evidence, including a statement outlining his circumstances and settlement in Australia. The applicant’s mother also provided a statement about her relationship with the applicant’s biological father. The applicant provided a statement explaining why he disagrees with the primary decision, essentially noting that  he has never lived with, nor had any meaningful relationship with his biological father and discussing the concept of family. The Tribunal accepts the applicant’s evidence.

10. In oral evidence to the Tribunal the applicant said he last had contact with his father 15 years ago. They met for lunch but there was very little contact between them and he has not seen his father since that time. Prior to that he saw his father when he was three years old. He also met his step-brothers on that occasion but he does not know anything about them. The applicant confirmed that his father had remarried and had other children.

11. The Tribunal is prepared to accept that the applicant has had little or no contact with his father, that there was not a meaningful relationship between them and that the applicant may not know his father’s current whereabouts. However, that does not disqualify the applicant’s father from being a near relative. The mere existence of that relative, irrespective of any lack of contact or a meaningful relationship, would disqualify the applicant from being a remaining relative.

12. The Tribunal has considered whether the presumption of death applies in this case. The applicant’s evidence is that neither he nor his mother had contact with his biological father over the years and there had never been a close relationship. In such circumstances, any lack of contact would be indicative of the absence of a relationship rather than the death of the person. The Tribunal is not satisfied that the father should be presumed dead. In the absence of any documentary evidence of his death, the Tribunal is not satisfied the applicant’s father is deceased.

13. Further, the applicant’s evidence to the Tribunal is that he has half siblings. Again, the Tribunal accepts that the applicant may not have had any contact with them but nevertheless, they are considered to be the applicant’s near relatives.

14. The Tribunal finds that the applicant’s biological father and half siblings are near relatives. There is nothing to indicate they are resident in Australia or that they are Australian citizens or permanent residents or eligible New Zealand citizens. The Tribunal finds that the applicant does not meet r. 1.15(1)(c). The applicant does not meet cl. 835.212 and cl. 835.221.   

15. The Tribunal acknowledges the applicant’s and his step-father’s evidence about how the family could be defined and the fact that the applicant had no relationship with his relatives. The applicant also submits that he has nothing to go back to and he is well supported in Australia. However, as explained during the hearing, the Tribunal has no discretion in relation to these matters. The Tribunal accepts the entirety of the applicant’s evidence but has no discretion to waive the statutory criteria.

16. The applicant was born in May 1988 and he is not old enough to be granted an aged pension. The applicant does not meet the requirements for the grant of the Aged Dependent relative visa. The application was not accompanied by evidence that the applicant sought the relevant certificate and the applicant had not claimed to be a carer of another person. The Tribunal is not satisfied the applicant made a valid application for a Carer visa and finds that in any case, he would not meet the requirements for the grant of that visa.

    Conclusion

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.

    Kira Raif
    Senior Member