Ferguson (Migration)

[2020] AATA 5086

Ferguson (Migration) [2020] AATA 5086 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Lourdes Ferguson

VISA APPLICANT:  Mr Anthony Corbes

CASE NUMBER:  1724410

DIBP REFERENCE(S):  OSF2015/059601

MEMBER:Kira Raif

DATE:25 August 2020

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 25 August 2020 at 12:13pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –115(Remaining Relative visa)– visa applicant’s partner has relatives in home country – applicant does not meet the definition of ‘remaining relative’– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 115.211, 115.221

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 2 August 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 November 2015. The delegate refused to grant the visa on the basis that cl.115.211 was not met because the delegate was not satisfied the visa applicant was a remaining relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The review applicant appeared before the Tribunal on 25 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, 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. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations.

6. Relevantly to this matter, the primary criteria to be met include cl.115.211. The visa application was made on the basis that the visa applicant is the remaining relative of his mother. 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.

7. To be granted a Subclass 115 visa the visa 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.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations. Broadly speaking, the visa applicant, together with his or her spouse or where relevant, de facto partner, must have no ‘near relatives’, with the exception of certain relatives in Australia. ‘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 visa applicant a remaining relative of an Australian relative?

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant claimed to be the son of the sponsor, Ms Lourdes Ferguson. The delegate did not accept that relationship, noting that the visa applicant’s birth certificate identifies different parents (Norma and Anthony Corbes). The delegate also noted that the visa applicant was not declared in the sponsor’s own migration application. The sponsor provided a statement in which she explained that she gave birth while employed at Ms Corbes’ house and left the child with her employers. The sponsor explained that she did not declare the child in her own application as she was unaware of his whereabouts. The primary decision record indicates that when the visa applicant was interviewed, he stated that he knew Ms Corbes as his mother and the father he knew left with the other children.

9. The delegate was not satisfied that the applicant and the sponsor were related. The review applicant provided to the Tribunal the results of a DNA test which confirm that she is the biological mother of the visa applicant. The Tribunal finds that the visa applicant is the biological child of the sponsor.

10. In oral evidence, the review applicant explained to the Tribunal the circumstances of the visa applicant’s birth. She said she only met him through Facebook in 2011.

11. The review applicant told the Tribunal that the visa applicant is still married and lives with his wife and children as a family. The review applicant said that the intention is for her to bring her son to Australia first and once he settles, he will bring his wife and children to Australia.

12. The review applicant confirmed that the visa applicant’s partner has relatives in the Philippines, including siblings, aunts and uncles. The Tribunal finds that the siblings are ‘near relatives’ for the purpose of r. 1.15(1)(c).

13. The Tribunal finds that the visa applicant’s spouse has near relatives who are not resident in Australia and who are not Australian citizens or permanent residents or eligible New Zealand citizens. The applicant does not meet the definition of ‘remaining relative’. The Tribunal is not satisfied that the visa applicant is the remaining relative of an Australian relative at the time of application and the time of decision for the purposes of cl.115.211 and cl.115.221.

14. The visa applicant was born in March 1980. He is not old enough to be granted an aged pension and does not meet the requirements for the grant of an aged dependent relative visa. The application was not accompanied by the relevant certificate and the Tribunal finds that the visa applicant had not made a valid application for a Carer visa. He does not claim to be a carer and would not meet the requirements for the grant of that visa.

    Conclusion

15. 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.

    DECISION

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

    Kira Raif
    Senior Member