Hendrie (Migration)

[2017] AATA 1664

Hendrie (Migration) [2017] AATA 1664 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ian Hendrie

CASE NUMBER:  1600588

DIBP REFERENCE(S):  CLF2015/65523

MEMBER:Kira Raif

DATE:4 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 October 2017 at 10:42am

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Near relative in home country

LEGISLATION

Migration Act 1958, s 65,

Migration Regulations 1994, r 1.03, r 1.15, Schedule 2, cl 835.212, cl 835.221

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 8 January 2016 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 visa applicant is a national of the UK, born in November 1987. He applied for the visa on 15 October 2015. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied the applicant was the remaining relative of the Australian relative. The applicant seeks review of the delegate’s decision.

3. On 22 August 2017 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 13 November 2017. On 4 October 2017 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant 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.

5. The visa application was made on the basis that the applicant is the remaining relative of his father. 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, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

6. 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. 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.

   Is the applicant a remaining relative of an Australian relative?

7. The applicant stated on the application form that his mother and two siblings reside in the UK. The Tribunal finds that parent and siblings are ‘near relatives’ for the purpose of r. 1.15(1)(c). Whether or not the applicant has any contact with these relatives, the presence of near relatives in the applicant’s home country means the applicant cannot meet the requirements of r. 1.15(1)(c).

8. The Tribunal finds that the applicant’s mother and siblings are near relatives within the meaning of r. 1.15(2). They reside in the UK and there is no evidence that they are Australian citizens or residents or eligible New Zealand citizens. The Tribunal finds that the applicant has near relatives who are not in Australia. He does not meet r. 1.15(1)(c) and r. 1.15. The applicant is not a remaining relative of the sponsor and does not meet cl. 835.212 and cl. 835.221.

9. There is no evidence that the applicant is a carer of an Australian relative and he is not old enough to be granted the aged pension. The applicant does not meet the requirements for the grant of the Carer and the Aged Dependent Relative visas.

   Conclusion

10. For the reasons above, the applicant does not meet the criteria for a Subclass 835 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.

    DECISION

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

    Kira Raif
    Senior Member