Hassanzadeh (Migration)

[2020] AATA 4386

Hassanzadeh (Migration) [2020] AATA 4386 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lailuma Hassanzadeh

VISA APPLICANT:  Ms Maryam Omary

CASE NUMBER:  1809957

HOME AFFAIRS REFERENCE(S):          2015/052447 OSF2015/052447

MEMBER:Helena Claringbold

DATE:20 October 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 20 October 2020 at 2:33pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – close or other specified relative – first cousin once removed not a specified relative – other, closer relatives in Australia – sponsor’s medical conditions deteriorating – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 116.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 5 May 2015, Ms Maryam Omary, the visa applicant, applied for an Other Family (Migrant) (Class BO) visa. The application was made on the basis that she is available to act as a Carer for her Australian Citizen cousin, Ms Lailuma Hassanzadeh, the sponsor and review applicant.

2. The visa applicant applied for the visa on 5 May 2015. At that time, 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 applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa.

3. On 5 February 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the visa applicant is a relative of the sponsor. Therefore, the visa applicant did not meet cl.116.211 of Schedule 2 to the Regulations made under the Migration Act 1958 (the Act). On 10 April 2018, the sponsor provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

4. On 13 October 2020, the sponsor appeared before the Tribunal to give evidence and provide argument. The Tribunal also took evidence from the sponsor’s niece and great-nephew. The Tribunal hearing was assisted by the services of an interpreter in the English and Dari languages. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file. 

   ISSUE

7. The issue in the present case is whether the sponsor is the ‘Australian relative’ of the applicant, as defined in r.1.03 of the Regulations.

   BACKGROUND ON THE EVIDENCE

8. The visa applicant was born in 1991 in Kabul, Afghanistan. Her parents are deceased and she did not declare any siblings.

9. The sponsor was born in 1973. She first entered Australia on 11 August 2004 and on 2 May 2007, she was granted Australian citizenship.  The sponsor did not declare any marriage or de facto relationship or that she had any children. She has two siblings living in Australia and one sibling living in Kabul, Afghanistan.

   Is the sponsor an ‘Australian relative’ of the applicant?

10. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

11. Relative, in relation to a person, is defined in the Regulations as meaning:

    ….

    (b)      in any other case:

    (i)      a close relative; or

    (ii)      a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

12.      Close relative, in relation to a person, is defined in the Regulations as meaning:

(a)      the spouse or de facto partner of the person; or

(b)      a child, parent, brother or sister of the person; or

(c)      a step-child, step-brother or step-sister of the person.

1. At the time of visa application, the visa applicant and the sponsor declared that they are related as cousins. On 22 December 2017, the sponsor’s migration agent (migration agent) wrote to the Department and stated that the visa applicant is the niece of the sponsor.  He provided a family tree to clarify the relationship between the sponsor and the visa applicant. The family tree demonstrated that the sponsor’s father had four children, including the sponsor.  His sister Aisha had two children, including the visa applicant’s mother. Therefore, the sponsor and the visa applicant’s mother are related as first cousins and the sponsor and the visa applicant are related as first cousins once removed.   

2. The Tribunal discussed with the sponsor her family relationships and particularly her relationship with the visa applicant as detailed above.  The sponsor confirmed with the Tribunal that the relationships are recorded correctly.

3. The sponsor told the Tribunal the following. She is unwell and needs to have the visa applicant come to Australia and care for her. She has lived with her sister in Australia since 2004. Her sister is married and has four children. Her other sister is married and has two children but is unwell with dementia. When she travelled to Afghanistan, the visa applicant helped her and she likes the visa applicant’s character.  They are very close and are in regular contact. The visa applicant married on 11 June 2018 and has a daughter aged 18 or 19 months.  About two months after her marriage, her husband left her in Kabul and travelled to Farah and went missing. She is concerned about the visa applicant and her daughter’s safety.

4. The sponsor’s niece told the Tribunal the following. The sponsor needs someone to care for her 24 hours a day. Her sisters in Australia are married with children and one of them is ill. The visa applicant could provide her with the care she requires.  The sponsor’s great nephew told the Tribunal the following. He has grown up with the sponsor and her family. The sponsor has medical conditions which are worsening. Over the years, he has taken the sponsor for medical appointments. The sponsor lives with her sister who is married with four children and a husband who has been diagnosed with cancer. The sponsor needs a carer to look after her.

5. The sponsor’s migration agent told the Tribunal the following.  He explained to the sponsor and she understands that her relationship with the visa applicant does not meet the definition as required.  However, she has been waiting for five and a half years for the outcome of the visa application and review. During that time, her medical conditions have deteriorated. He requested that the Tribunal refer the matter to the Minister for consideration. The Tribunal is sympathetic to the needs of the sponsor but declines bringing the matter before the Minister. However, it encourages the sponsor to bring the matter to the Minister’s attention.

   Other considerations

6. The sponsor’s migration agent agreed that it was not necessary to take evidence from the visa applicant. The Tribunal was of the view that the sponsor provided credible evidence about her relationship with the visa applicant, which could not be altered by the visa applicant’s evidence.

7. This decision record is a synopsis of the information before the Tribunal. The Tribunal considered the evidence individually and completely.  The evidence before the Tribunal is that the sponsor and the visa applicant are related as first cousins once removed.  As a result, the sponsor is not a relative of the visa applicant as defined in r.1.03 of the Regulations.

8. Therefore, at the time of application, the visa applicant does not meet cl.116.211 of Schedule 2 to the Regulations.

9. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa.

10. In respect of the other visa subclasses, there are no claims and no evidence that the visa applicant meets the relevant criterion.  

    DECISION

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

    Helena Claringbold
    Member