Gower (Migration)

[2017] AATA 829

Gower (Migration) [2017] AATA 829 (9 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Caroline Ino Fititei Gower
Miss Fancymina Josephine Gower

CASE NUMBER:  1616295

DIBP REFERENCE(S):  CLF2016/35503

MEMBER:Michelle Grau

DATE:9 May 2017

PLACE OF DECISION:  Brisbane

DECISION:The tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 09 May 2017 at 3:04pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Remaining relative of an Australian relative – Sponsorship by a parent, siblings or step equivalents – Applicant has siblings outside Australia

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, r 1.15, Schedule 2, cl 835.212, cl 835.221, cl 835.321

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 15 September 2016 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 10 June 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 applicants are 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 visas on the basis that cl.835.212 was not met because the applicant was ‘sponsored’ by her daughter as the remaining relative, but the applicant needed to be the remaining relative of her parent, siblings or step equivalents.

4. The applicants appeared before the tribunal on 9 May 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The first named applicant is a 48 year old female from the Solomon Islands. The second named applicant is her 13 year old daughter. The applicants are sponsored by sponsored Isabella Gower, the first named applicant’s daughter.

7. The visa application was made on the basis that the first named applicant is the remaining relative of her daughter Isabella Gower, who is her Australian relative.

   Is the applicant a remaining relative of an Australian relative?

8. 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.

9. The issue in this case is whether the first named applicant meets the definition of remaining relative’ as defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

   The requirement to be a parent or sibling: r.1.15(1)(a)

10. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

11. The first named applicant therefore needs to be the remaining relative of her parent, brother, sister or step equivalents.  There is no provision under r 1.15 for it be her child. As the Australian relative in this case is the daughter of the applicant, r.1.15(1)(a) is not met.

    No near relatives: r.1.15(1)(c)

12. 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.

13. ‘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.

14. Further, it is evident from her application and at hearing that the first named applicant has near relatives (being her siblings) residing in Solomon Islands and therefore she does not meet r.1.15(1)(c ).  The tribunal finds the first named applicant has near relatives (being her siblings) residing in the Solomon Islands.

15. For these reasons, the tribunal is not satisfied there are no near relatives other than those permitted by the regulations. Therefore r.1.15(1)(c) is not met.

16. The tribunal has considered the applicant’s statements and desire to remain with her daughters in Australia and provide assistance. However, the tribunal has no discretion.

17. The tribunal finds therefore that the first named applicant does not meet the definition of remaining relative in r.1.15. She therefore does not meet cl. 835.212 and cl.835.221.

    CONCLUSION

18. For the reasons set out above, the tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application or the time of decision for the purposes of cl.835.212 and cl.835.221.

19. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa. At hearing, the tribunal discussed the alternative subclasses with the applicant. However, the applicant would not meet the aged dependent relative visa criteria because she is under 65 years old. Further, she would not meet the definition of carer and there was no carer certificate. Therefore she would not meet the criteria for a carer 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.

    Secondary applicant – Fancymina Gower

20. As the first named applicant does not meet the primary criteria for the visa, the tribunal finds the applicant does not meet cl.835.321 as she is not a member of the family unit of a person who meets the primary criteria. For similar reasons, the second named applicant does not meet the alternative subclasses.

21. Further, the second named applicant does not meet r.1.15(1)(c) because her parent (the first named applicant) is a near relative who is a Solomon Island citizens and not an Australian citizen or permanent resident. As she has near relatives, the second named applicant therefore does not meet the definition of remaining relative and does not meet cl. 835.212 and cl.835.221.

    DECISION

22. The tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Michelle Grau
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    835.212

    The applicant is a remaining relative of an Australian relative.

    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).