Huan (Migration)

[2020] AATA 2911

Huan (Migration) [2020] AATA 2911 (8 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Caroline Chern Soo Huan

CASE NUMBER:  1909557

DIBP REFERENCE(S):  CLF2018/50683

MEMBER:Kira Raif

DATE:8 July 2020

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 08 July 2020 at 3:04pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of Australian relative – no contact with applicant and sponsor’s father and no knowledge of whereabouts – presumption of death cannot be applied – evidence to suggest that father did not wish to maintain contact – sponsor’s health and applicant’s support – referred to department for consideration by minister – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(c), (2), Schedule 2, cll 835.212, 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 3 April 2019 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 is a national of Malaysia, born in September 1995. She applied for the visa on 31 May 2018. 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 a remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by teleconference on 18 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, the sponsor. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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).

5. 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. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person 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’.

6. The visa application was made on the basis that the applicant is the remaining relative of her sister. 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).

7. 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.

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 applicant a remaining relative of an Australian relative?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated on the application form that she has a sister (the sponsor) in Australia and her father in Malaysia. The applicant stated that she had no contact with her father. The delegate found that the father was not an Australian permanent resident or citizen and was not resident in Australia.

10. The applicant provided a number of documents to the Tribunal on 11 June 2020. These included declarations from a number of relatives who state that  the applicant’s mother passed away and that she has not had any contact with, nor support from, her father. The applicant included a statement from her lawyer stating that the father admitted during the divorce proceedings that he did not provide any support to the applicant and that there has been no contact with him since that time. There is also a letter of support from a local member of parliament.

11. In oral evidence the applicant told the Tribunal that she has not had any contact with her father since the court case in 2015 and no financial support was provided since that time. The applicant said that she has not made any attempt to locate her father. The representative noted that it was not only the applicant who has not had any contact with the father but also other relatives who may have been expected to hear from him. The applicant’s representative claims that there is a possibility that the applicant’s father has passed away. The representative notes that the family has not heard from him and it would normally be expected that relatives residing in Malaysia would be in contact with the father and would be aware of his whereabouts. The representative notes that contrary to the court order, the father has not provided any financial support to the applicant. The representative submits that in the absence of evidence that the father is alive, the presumption of death should be applied.

12. The Tribunal is prepared to accept the applicant’s evidence and accepts that  the applicant has had no contact with her father. However, the Tribunal notes that the definition of ‘near relative’ is not concerned with the quality of relationship between relatives. The mere existence of near relatives would disqualify the applicant from being a remaining relative.

13. On 2 July 2020 the applicant provided further evidence to the Tribunal. This includes various reports and declarations confirming her sister’s health condition and the support the applicant provides to her sister. On 7 July 2020 the applicant confirmed in her correspondence to the Tribunal that she was unable to obtain the death certificate or a declaration concerning the presumption of death.

14. The Tribunal has considered the applicant’s submission but does not consider that the presumption of death can be applied here. The Tribunal is prepared to accept that neither the applicant, nor other family members had any contact with the father since the divorce proceeding around 2015. However, the evidence presented by the applicant appears to suggest that the father did not wish to maintain contact with his family. It appears that he had no intention of complying with the court order, or providing financial support to the applicant, from the time the court order came into force. It is not as if his behaviour had changed so it can be said that the father went missing after having contact with the applicant, and that his absence may lead to the presumption of death. It appears that he never had contact with the applicant. In such circumstances, the Tribunal does not consider that it can be said her father has been missing and can be presumed dead. It is possible that he is no longer alive but it is equally possible that he is alive but simply made a decision to have no contact with the family.

15. The Tribunal also acknowledges the representative’s submission, and the various statements, indicating that  the father has not had contact with other relatives who would ordinarily expect to hear from him. There is inadequate information, in the Tribunal’s view, to assess the nature of these relationship and to determine whether lack of contact, in the circumstances, should give rise to the presumption of death. Further, the Tribunal is not satisfied that suficieint time has passed with no contact to give rise to such a presumption.

16. It is up to the applicant to satisfy the Tribunal that she has no near relatives. The applicant has not satisfied the Tribunal that  her father is not alive or that  the presumption of death should be applied in this case.

17. The Tribunal finds that the applicant has a biological father and he is a ‘near relative’ for the purpose of r. 1.15(1)(c). There is no evidence that he is resident in Australia and that he is an Australian citizen or permanent resident or an eligible New Zealand citizen. The Tribunal does not consider that the presumption of death applies. As such, the Tribunal is not satisfied the applicant meets r. 1.15(1)(c) and finds that she is not a remaining relative of an Australian relative. She does not meet cl. 835.221.

18. The applicant is not old enough to be granted an aged pension and she is not entitled to the grant of the Aged Dependent Relative visa. The application was not accompanied by the relevant certificate and the Tribunal finds that the applicant has not made a valid application for a Carer visa and, in the absence of the Carer certificate, the applicant would be unable to meet the definition of a ‘carer’. She is not entitled to the grant of a Carer visa.

19. The sponsor told the Tribunal in oral evidence that she has been providing financial support to her sister and said that they have been reliant on each other and the applicant has nothing to go back to in Malaysia. There is medical evidence before the Tribunal concerning the sponsor’s condition. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

20. The Tribunal accepts that the applicant’s sister has a serious health condition and that the applicant has been providing substantial physical and emotional support to her sister. The Tribunal accepts the need for the ongoing support. The Tribunal acknowledges that there are compassionate circumstances in this case. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    Conclusion

21. 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

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

    Kira Raif
    Senior Member