Jama (Migration)

[2018] AATA 1977

Jama (Migration) [2018] AATA 1977 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hadia Mohamed Jama

VISA APPLICANTS:  Ms Sahra Samatar Guled
Ms Hibo Adan Abdi
Ms Zamzam Adan Abdi

CASE NUMBER:  1606614

DIBP REFERENCE(S):  OSF2012/050414

MEMBER:Kira Raif

DATE:5 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the second and third named visa applicants Other Family (Migrant) (Class BO) visas.

The Tribunal has no jurisdiction with respect to the first named applicant.

Statement made on 05 June 2018 at 1:47pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 114 (Aged Dependent Relative) – First named applicant deceased – Financially reliant on the review applicant until her death – No jurisdiction – Second and third named applicants – Grandchildren of the first named applicant – Members of the family unit of the first named applicant – Requirements cannot be met – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03 Schedule 2 cls 114.211, 114.221, 115.221

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 5 April 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant is a national of Somalia born in January 1947. She applied for the visa on 26 November 2012. The application includes her two grandchildren. The delegate refused to grant the visas on the basis that cl.114.211 and cl. 114.221 was not met because the delegate was not satisfied the visa applicant was an aged dependent relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant’s evidence to the Tribunal is that the first named visa applicant has passed away in 2016. Copies of death records have been provided to the Tribunal. The Tribunal finds that it no longer has jurisdiction with respect to the first named visa applicant.

4. The review applicant appeared before the Tribunal on 5 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse and other witnesses. The review 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

5. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 114 visa which requires the primary visa applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen.

6. The visa application was made on the basis that the first named visa applicant is the aged dependent relative of her daughter. 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. To be granted a Subclass 114 visa the visa applicant must be an ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl.114.211 and cl.114.221. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

8. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of r.1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the Social Security Act 1991.

   Is the visa applicant an aged dependent relative of an Australian relative?

9. When the application was made, the first named visa applicant claimed to be an aged dependent relative of her daughter and to be financially dependent on her daughter. According to the primary decision record, a copy of which the review applicant provided to the Tribunal, the application included evidence of 28 money transfers from the review applicant to her mother between 2010 and January 2016. It is stated that in March 2016 the Department received advice that the visa applicants moved to Malaysia in October 2015. The delegate noted that minimal funds had been sent since the family’s move to Malaysia. As a result, the delegate was not satisfied that from 2015, the first named visa applicant was dependent on her daughter for financial support.

10. The applicant provided a written submission to the Tribunal on 4 June 2018, one day before the scheduled hearing. Additional materials have been sent to the Tribunal on 5 June, shortly before the commencement of the hearing, including death records and evidence of money transfers. The Tribunal is mindful that the application for review was lodged with the Tribunal in May 2016, more than two years before the review applicant’s attendance at hearing and the review applicant had ample time to prepare and present her evidence more than 24 hours prior to the hearing. No explanation is offered by the applicant’s representative for the extremely late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters.

11. In her written submission to the Tribunal the review applicant advised the Tribunal that the primary visa applicant had died in April 2016 and her death certificate and other papers have been submitted to the Tribunal.

12. The review applicant argues that the Department erred by not finding that the visa applicant was dependent on her daughter. The review applicant refers to the evidence of financial support she provided to the visa applicants until the primary visa applicant’s death and since her death, to the two children. The review applicant states she travelled to Ethiopia in 2014 and took money with her to provide support to her mother and nieces. She also travelled to Malaysia in 2015 and 2016 and brought funds with her. The review applicant refers to the children being orphans and the risks that they face as young single women in Somalia.

13. The review applicant suggests that their application can be considered against the Orphan Relative provisions. She claims that the children have nobody to care for them and are orphan relatives. The review applicant states that she did not understand the immigration system but clearly told the Immigration Department that the children were orphans. The Tribunal notes, however, that the applications that were made and are presently being considered on review are for a different Class. It is not open to the applicants to change their application to a different class and while the Tribunal must consider the applications for each subclass within Class BO, it is not able to consider the application against an entirely different class for which no valid application has been made and in respect of which there is no reviewable decision.

14. In relation to the Aged Dependent Relative, the Tribunal is not satisfied that the visa applicants are ‘aged’ dependent relatives because they are not old enough to be granted the relevant aged pension. They cannot meet the primary criteria for visa grant in cl. 114.221. They also do not meet the secondary criteria in cl. 114.321 because since the death of the primary visa applicant, they are not members of the family unit of a person who would meet the primary criteria. The Tribunal acknowledges the review applicant’s evidence that the children are fully dependent on her financially but as the Tribunal explained to the review applicant, establishing financial dependence is not sufficient because the age requirements cannot be met.

15. There is no suggestion that the visa applicants claim to be, or are carers of an Australian relative and there is no relevant carer Certificate. The Tribunal is not satisfied the visa applicants are Carers for the purpose of cl. 116.221 and they do not meet the requirements for the grant of the Carer visa.

16. With respect to the Remaining Relative visa, the Tribunal notes that there are two visa applicants, born in 1997 and 1999 respectively. The review applicant claims their father passed away and the whereabouts of their mother are unknown and there are no other relatives. However, the visa applicants are siblings. That is, each of them is a ‘relative’ of the other. The Tribunal finds that each of the visa applicants has a ‘near relative’ – a sibling – who is not resident in Australia and who is not an Australian citizen, permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied that either of the visa applicants is a ‘remaining relative’ and they do not meet cl. 115.221.

17. The review applicant and her witnesses told the Tribunal that the visa applicants are fully reliant on them in every respect and live in a country where their situation is unsafe. They requested the grant of the visas on humanitarian grounds. However, as the Tribunal explained in the course of the hearing, it is unable to grant the visas on humanitarian grounds. Having found that the visa applicants do not meet the requirements for visa grant, the Tribunal must affirm the decision under review.

    Conclusion

18. For the reasons above, the visa applicant does not meet the criteria for a Subclass 114 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

19. The Tribunal affirms the decision not to grant the second and third named visa applicants Other Family (Migrant) (Class BO) visas.

20. The Tribunal has no jurisdiction with respect to the first named applicant.

    Kira Raif
    Senior Member