Islam (Migration)

[2021] AATA 452

Islam (Migration) [2021] AATA 452 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fahid Islam

CASE NUMBER:  1926402

DIBP REFERENCE(S):  CLF2018/18320

MEMBER:Kira Raif

DATE:2 February 2021

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 02 February 2021 at 9:23am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – definition of ‘Remaining relative’ is not met – wife’s mother and brother reside overseas – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15, Schedule 2, cls 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 29 August 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 applied for the visa on 26 February 2018. The delegate refused to grant the visa on the basis that cl.835.221 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 20 June 2020 to give evidence and present arguments. 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.

6. 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’.

7. ‘Remaining relative’ is defined in r.1.15 of the Regulations. 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. ‘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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed to be the remaining relative of his Australian sister.

9. In June 2018 the applicant made an application for a Bridging B visa stating that he wished to travel to Fiji with his future wife to apply for the Subclass 309 visa. The applicant subsequently provided further information, including advice that his spouse, Sharaf Anika, had two relatives, a mother and a brother, residing in Bangladesh.

10. In oral evidence to the Tribunal the applicant confirmed that his parents are deceased and his siblings are in Australia. The applicant stated that he married in June 2019 and they have a two months old child. The applicant confirmed that his wife’s mother and brother reside overseas. The applicant concedes that he does not meet the requirements for the grant of the Remaining Relative visa and said that he has also made an application for a Partner visa and he is awaiting the outcome of that application. The Tribunal granted the applicant time to progress that application.

11. Having regard to the applicant’s own evidence, the Tribunal finds that the applicant has a spouse and that his spouse’s parent and sibling reside overseas and are not Australian citizens or permanent residents. The Tribunal finds that the applicant’s spouse has near relatives who are not resident in Australia. The Tribunal is not satisfied the applicant meets r. 1.15(1)(c). He is not a remaining relative of an Australian relative. The Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of decision for the purposes of cl.835.221.

12. The applicant is not old enough to be granted an Aged Pension and he does not meet the requirements of the grant of an Aged Dependent Relative visa. His application was not accompanied by the relevant certificate and he has not made a valid application for a Carer visa and there is no evidence that the applicant is a carer. The applicant does not meet the requirements for the grant of a Carer visa.

    Conclusion

13. 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

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

    Kira Raif
    Senior Member