Gladwell (Migration)

[2019] AATA 2876

Gladwell (Migration) [2019] AATA 2876 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Richard Henry Charles Gladwell

CASE NUMBER:  1729157

DIBP REFERENCE(S):  CLF2017/5870

MEMBER:John Billings

DATE:19 March 2019

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 19 March 2019 at 5:14pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – applicant’s relationship to sponsor – sponsor is applicant’s son – sponsor is not parent, brother, sister, step-parent, step-brother or step sister – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994, Schedule 2, cls 835.212, 835.221, rr 1.03, 1.15

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 14 November 2017 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, Mr Gladwell applied for the visa on 10 January 2017. 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, Mr Gladwell 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.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met.  The delegate found that Mr Gladwell is not the remaining relative of an Australian relative as defined in the Regulations.    

4. Mr Gladwell applied for review on 22 November 2017.  He provided a copy of the primary decision to the Tribunal.    

5. Mr Gladwell was represented in relation to the review by his registered migration agent.

6. There was no hearing.  On 11 February 2019 the Tribunal sent Mr Gladwell an invitation to appear before the Tribunal on 18 March 2019 at 11.30 am.  In response Mr Gladwell’s representative notified the Tribunal that Mr Gladwell and the representative would not be attending the hearing.  In the circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable Mr Gladwell to appear before it.

7. Mr Gladwell is an 87 year-old national of the United Kingdom.  He is widowed.  He has no living siblings.  Mr Gladwell was sponsored for the visa by his 59 year old son, Mr Paul Richard Gladwell (“Paul”), who is an Australian permanent resident.  Mr Gladwell has visited Australia a number of times since 2013.  He most recently entered Australia on 25 November 2016 holding a Class TV Subclass 651 eVisitor visa.  Before that visa expired he was granted a Bridging A visa. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. As declared in the visa application and sponsorship, the application was made on the basis that Mr Gladwell is the remaining relative of his son, Paul, who he claims is his 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 (which includes child and parent), or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

10. The Department’s records confirm that Paul is an Australian permanent resident.  According to the visa application and sponsorship and Paul’s marriage certificate that was submitted to the Department, Paul is Mr Gladwell’s son.  Paul is therefore an Australian relative for these purposes.

    Is the applicant a remaining relative of an Australian relative?

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

12. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person (the Australian relative) 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’.

13. The 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 applicant is an adopted child.

14. As declared in the visa application and sponsorship Paul is Mr Gladwell’s son.  Paul is not claimed to be Mr Gladwell’s parent, brother, sister, step-parent, step-brother or step sister.  There is no evidence to indicate other than that Paul is Mr Gladwell’s son.  Accordingly, r.1.15(1)(a) is not met.  This means that r.1.15 is not met.

15. For these reasons, the Tribunal is not satisfied that Mr Gladwell is the remaining relative of an Australian Relative at the time of application for the purposes of cl.835.212.

16. Mr Gladwell therefore does not meet the criteria for a Subclass 835 visa.

17. In respect of the other visa subclasses there is no material which would permit a finding that Mr Gladwell meets prescribed criteria. Mr Gladwell does not claim to be the carer of an Australian relative (so as to be eligible for a Subclass 836 (Carer) visa).  And there is no claim, and no evidence before the Tribunal that would support a claim, that Mr Gladwell is has been dependent on an Australian permanent resident or other relevant person for a reasonable period and remains so dependent (so as to be eligible for a Subclass 838 (Aged Dependent Relative) visa).   

    DECISION

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

    John Billings
    Senior 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).