Farah (Migration)

[2018] AATA 847

Farah (Migration) [2018] AATA 847 (26 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdi Mohamed Farah

CASE NUMBER:  1622445

DIBP REFERENCE(S):  CLF2016/45424

MEMBER:Margie Bourke

DATE:26 March 2018

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 26 March 2018 at 1:06pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Sponsor – Applicant’s brother – New Zealand citizen – Not an ‘eligible New Zealand citizen’ – Tribunal unable to redefine the status of the sponsor

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994 rr 1.03, 1.15A Schedule 2 cl 835.213 Schedule 4 Criteria 4001, 4004, 4007, 4009
Social Security Act 1991

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 13 December 2016 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 29 July 2016. 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.835.213.

3. The delegate refused to grant the visa on the basis that cl.835.213 was not met because the delegate was not satisfied that the sponsor was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

4. The applicant appeared before the tribunal on 19 March 2018 by video link to give evidence and present arguments. The tribunal also received oral evidence from the sponsor and from another witness. The tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing via telephone.

6. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant is the remaining relative of Mr Ahmed Mohamed Farah 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).

8. In this case the sponsor Ahmed Mohamed Farah is the applicant’s brother and therefore is a relative of the applicant within the meaning of r.1.03. The issue for this review is whether the sponsor is an Australian citizen, an Australian permanent resident or an eligible NZ citizen.

   Are the sponsorship requirements met?

9. Clause 835.213 requires that at the time of application the applicant is sponsored by the ‘settled’ Australian relative, or the spouse or where relevant, the de facto partner, of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, that person must cohabit with the Australian relative and must also be a settled Australian citizen, permanent resident or eligible New Zealand citizen.

10. The terms, ‘settled’, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s.5F of the Act (for visa applications made after on or that date). ‘De-facto’ partner is defined in s.5CB of the Act (for visa applications made on or after 1 July 2009).

11. In the sponsorship form the sponsor declares he was born In Mogadishu, and is currently a citizen of New Zealand.  The tribunal was provided with the sponsor’s New Zealand passport issued 10 October 2013.

12. The applicant provided the tribunal with a copy of the Department’s decision record dated 13 December 2016, which included the definition of ‘eligible New Zealand citizen’ as set out in r.1.03. The tribunal has also considered the forms provided to the Department, the statutory declarations of the applicant and his relatives. The tribunal is satisfied that the applicant’s mother and five siblings (including the sponsor) are residing in Australia, and are the holders of temporary visas called Subclass TY 444 visas.

13. There is no evidence before the tribunal that the sponsor is an Australian citizen, or an Australian permanent resident. The applicant and his representative stated that the sponsor and the other members of the family were not Australian citizens or Australian permanent residents.  The representative stated that one of the applicant’s siblings was currently applying for permanent residency.  Based on the evidence before it, the tribunal is satisfied that the sponsor is not an Australian citizen or an Australian permanent resident.

14. The tribunal is satisfied that the sponsor is a New Zealand citizen.  The tribunal has considered that the applicant does not satisfy the definition of ‘eligible New Zealand citizen’ as defined in r.1.03.

15. Regulation 1.03 states and ‘eligible New Zealand citizen’ means a New Zealand citizen who (a) at the time of his or her last entry to Australia, would have satisfied public interest criteria 4001 to 4004 and 4007 to 4009; and (b) either: (i) was in Australia on 26 February 2001 as the holder of a Subclass 444 (Special Category) visa that was in force on that date; or (ii) was in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than one year in the period of two years immediately before 26 February 2001; or (iii) has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.

16. There is no evidence before the tribunal that the sponsor meets the criteria for the definition in r.1.03 of ‘eligible New Zealand citizen’. There is no evidence before the tribunal that the sponsor was in Australia on 26 February 2001 as the holder of a Subclass 444 visa, or in Australia as the holder of a Subclass 444 visa for a period or periods of not less than one year in the two years immediately before 26 February 2001, or the holder of a certificate issued under the Social Security Act 1991.

17. The applicant’s representative submitted to the tribunal that the applicant did not meet the criteria, and that the sponsor was not an eligible New Zealand citizen within the meaning of the regulations.

18. The applicant stated that the issue of why he could not be sponsored by his brother needed to be assessed.  He stated that his mother was ill, and the family of five were hard working people. The applicant stated he accepted that the sponsor was not an eligible New Zealand citizen, and was not eligible to sponsor him.  The applicant submitted that his brother (the sponsor) should be eligible to sponsor him.

19. The sponsor told the hearing that he came to Australia in 2011, and as he lived permanently in Australia, he should be able to sponsor his brother to live here with the family.

20. The witness, Mr H Egel, the Chairman of the Somali community in Perth, told the tribunal that the family were hard working good people who contribute to the community.  He stated the family deserved to be reunited, and it was good for the applicant to be with his mother.

21. The tribunal discussed with the applicant and the sponsor that it could not change the definition of ‘eligible New Zealand citizen’ in the regulations. The tribunal discussed with the applicant and the sponsor that it could not redefine the status of the sponsor.

22. The tribunal has considered all the evidence available to it and is not satisfied that the sponsor is an eligible New Zealand citizen within the meaning of r.1.03.

23. For the above reasons, the tribunal is not satisfied that the sponsor is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Therefore the tribunal is not satisfied that the applicant is sponsored by an Australian relative (or the spouse of an Australian relative), who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The tribunal is not satisfied that the applicant meets the sponsorship requirements in cl.835.213.

24. Therefore at the time of application the applicant was not sponsored in accordance with the regulations and therefore does not satisfy cl.835.213.

25. 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

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

    Margie Bourke
    Member