Iwanenko (Migration)

[2017] AATA 344

Iwanenko (Migration) [2017] AATA 344 (21 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nina Iwanenko

CASE NUMBER:  1608441

DIBP REFERENCE(S):  CLF2016/13254

MEMBER:Meena Sripathy

DATE:21 February 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 21 February 2017 at 10:58am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Applicant’s relationship to sponsor – Not living Australian relative – Absence of living close relatives – Ministerial intervention

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 835.212, cl 835.213, cl 835.221, cl 835.227, r 1.03, r 1.15

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 26 May 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 applicant applied for the visa on 26 February 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 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.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate found that the relationship between the visa applicant and the sponsor was no longer connected through a living relative and the relationship of sister in law between the visa applicant and sponsor is not a ‘near relative’ under r.1.15(2)(a).

4. On 23 December 2016 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her 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 21 February 2017. On 20 February 2017 the applicant’s representative advised the Tribunal that the applicant will not attend the hearing and requested the Tribunal to make a decision on the review on the evidence before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa applicant is a 90 year old widow, of US nationality.  She indicated her maiden name as Nina Chiciak.  She made this application under the Remaining relative category.  In the application form she listed all her relatives, being her parents and three brothers, as deceased and indicated that she has no other relatives, alive or deceased.  Accordingly, in her application she has not indicated any person as her Australian remaining relative. 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).  The applicant is sponsored by Ms Leokadia Chiciak, who indicates her relationship to the visa applicant is ‘sister in law’. The sponsor indicates the visa applicant’s relationship status as widow.  She names the visa applicant’s husband as Paul Iwanenko who is deceased.

7. The following documents were submitted with the application in support: copy of the visa applicant’s US passport; certificate of marriage of the visa applicant and Paul Iwanenko in 1956 in NSW; Paul Iwanenko’s certificate of naturalisation as an Australian citizen in 1955; City of New York death transcript relating to Paul Iwanenko’s death in 2004 in New York, USA; sponsor’s certificate of Australian citizenship granted in 1974; sponsor’s NSW Marriage Certificate evidencing Myron Chiciak on 23 November 1963; death certificate relating to Myron Chiciak’s death in 2002 in Liverpool, NSW;  Myron Chiciak’s certificate of naturalisation as an Australian citizen in 1957; death certificate in relation to Dmytro Chiciak who died in NSW in 1968, naming his children as including Myzon, 45 years and Nina 42 years.

8. On the evidence before it, the Tribunal finds that the visa applicant has no living Australian relatives for the purposes of the definition of remaining relative in r.1.15.

   Are the sponsorship requirements met?

9. Clause 835.213 requires that at the time of application the applicant is sponsored by the ‘settled’ Australian relative, or the spouse or where relevant, the de facto partner, of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, that person must cohabit with the Australian relative and must also be a settled Australian citizen, permanent resident or eligible New Zealand citizen. At the time of this decision the sponsorship must be in force, although the sponsor need not be the same sponsor as at the time of application, provided he or she meets the requirements above: cl.835.227.

10. On the evidence before it, the Tribunal finds that the applicant is sponsored by Leokadia Chiciak.  It accepts that Leokadia Chiciak was married to Myron Chiciak, who died in 2002. On the evidence before it, specifically their father’s death certificate naming his children, the Tribunal accepts that Myron Chiciak was the applicant’s brother. Therefore the Tribunal finds that the sponsor is the sister in law of the applicant, being the widow of her late brother.  However, as the applicant’s brother is no longer alive, and sister in law is not included among the category of relative within the meaning of “Australian relative”, the Tribunal finds the applicant was not sponsored in accordance with the regulations and therefore does not satisfy cl.835.213.

    Is the applicant a remaining relative of an Australian relative?

11. 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, which is set out in the attachment to this decision.

12. 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’.

13. 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. Additional provisions apply if the applicant is an adopted child.

14. As there are no living Australian relatives in this case the applicant is unable to meet r.1.15.

15. For the reasons set out above, the Tribunal is not satisfied that the applicant meets the requirements of r.1.15 in the definition of remaining relative at the time of application or at the time of decision for the purposes of cl.835.212 and cl.835.221.

16. 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. Given the Tribunal’s finding that the applicant has no Australian relative, she cannot meet the requirements for the grant of a Subclass 836 (Carer) visa or a Subclass 838 (Aged Dependent Relative) visa. 

    Referral for Ministerial intervention

17. Having regard to the applicant’s circumstances, in particular her advanced age (90 years), apparent absence of any other living close relatives in her country of nationality; her ties to Australia having been married here to an Australian citizen and frequent visits over many years, and the presence of her widowed sister in law, also of advanced age, with whom she is living, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    DECISION

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

    Meena Sripathy
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    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).