Fraser (Migration)

[2020] AATA 3620

Fraser (Migration) [2020] AATA 3620 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Peter Wayne Fraser

VISA APPLICANTS:  Miss Panuka Sriran
Miss Chalisa Sriran
Master Naruenat Sriran

CASE NUMBER:  1927611

DIBP REFERENCE(S):  OSF2016/011662

MEMBER:Kira Raif

DATE:19 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 19 August 2020 at 2:11pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining relative) – remaining relative of an Australian relative – no near relative requirement – biological father resident in Thailand – little or no contact – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 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 27 September 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 22 July 2016. The delegate refused to grant the visas on the basis that cl.115.211 was not met because the delegate was not satisfied the applicant was the remaining relative of an Australian relative. The sponsor (‘the review applicant’) seek 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 19 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse (the mother of 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 applicants are 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.

6. 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, which is set out in the attachment to this decision.

7. 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.

8. ‘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?

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated in her application that her mother, step-father (the sponsor) and two siblings were resident in Australia. The visa applicant also declared two children who were included in the application. The visa applicant subsequently provided evidence in relation to her biological father, Kaen Sriran, stating that he was not resident in Australia and had no intention of living in Australia. The visa applicant confirmed that her father was resident in Thailand. The applicant stated that she had no contact with her father.

10. In oral evidence the review applicant told the Tribunal that he assisted the visa applicant with the application and they relied on advice from the Immigration Department. He said there may have been a clerical error with the application. All they want is for his wife’s family to be reunited in Australia. The review applicant referred to the difficulties and the costs associated with the application. The review applicant said there was family violence and the visa applicant’s mother told her husband to leave the house. The children do not know their father. The review applicant confirmed that the father had provided a letter with the application confirming that the children can migrate. 

11. The Tribunal is prepared to accept that the applicant has little or no contact with her biological father. However, the regulations are not concerned with the nature of the applicant’s relationship with her relatives. The existence of a near relative disqualifies the applicant from being a remaining relative, irrespective of any contact, or lack of it, with such a relative.

12. The Tribunal finds that the visa applicant’s biological father is a near relative. He is resident in Thailand and is not resident in Australia. There is no evidence that he is an Australian citizen or a permanent resident. There is no evidence that he has passed away and in the circumstances of this case, the Tribunal is not satisfied that the presumption of death arises. This is because there is evidence that his relationship with the family was non-existent and any lack of contact may be indicative of the lack of relationship rather than the father’s death. The Tribunal is also mindful that according to the primary decision record, the visa applicant has had some contact with her biological father.

13. The Tribunal finds that the visa applicant’s father is a near relative for the purpose of r.1.15(1)(c). The Tribunal is not satisfied the applicant has no near relatives other than relatives resident in Australia. The applicant does not meets the requirements of r. 1.15 and she is not a remaining relative of an Australian relative. The visa applicant does not meet cl. 115.211 and cl. 115.221. The remaining applicants do not meet cl. 115.321 and there is nothing to suggest they meet the primary criteria for visa grant.

14. The visa applicant was born in February 1992. She 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 applicants had not made a valid application for a Carer visa. They also do not claim to be carers 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 applicants Other Family (Migrant) (Class BO) visas.

    Kira Raif
    Senior Member