Jawanting (Migration)

[2017] AATA 2628

Jawanting (Migration) [2017] AATA 2628 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jaslen M S Jawanting

CASE NUMBER:  1720199

DIBP REFERENCE(S):  CLF2016/84669

MEMBER:Antoinette Younes

DATE:6 December 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 06 December 2017 at 5:01pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Near relatives in Malaysia

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 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 22 August 2017 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 2 November 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 applicant has near relatives.

4. The applicant was represented in relation to the review by her registered migration agent.

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

   HEARING INVITATION

6. On 9 November 2017, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the 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 scheduled at 10.30am on 6 December 2017. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration. The applicant responded to the hearing invitation by noting that she did not wish to attend the hearing.

7. In those circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the applicant is the remaining relative of Ms Jaslinda M S JAWANTING, who the applicant claims is the Australian 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).

   Is the applicant a remaining relative of an Australian relative?

9. 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.

10. 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’.

11. 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.

12. Ms Jaslinda M S JAWANTING is the applicant’s sister and she is an Australian permanent resident and therefore she is an Australian relative.  The issue in this case is whether the applicant has no near relatives.

    No near relatives: r.1.15(1)(c)

13. 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.

14. ‘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.

15. In the visa application form, the applicant indicated that her relatives are as follows:

    a.Amporia JAWANTING- deceased father;

    b.Tati Bte TABOR – mother currently residing in Malaysia;

    c.Jasthy JAWANTING – brother currently residing in Malaysia;

    d.Jasley JAWANTING – brother currently residing in Malaysia;

    e.Jaslinda M S JAWANTING - sister (sponsor) currently residing in Australia;

    f.Muhammad Daniel Bin Abdullah - son currently residing in Canada.

16. In support of the application for review, the applicant provided a copy of the delegate’s decision record which indicates that the applicant’s mother, two brothers and son did not hold permanent residency or citizenship to Australia. There is no evidence to suggest that they are eligible New Zealand citizens. The decision record also indicates that on 25 May 2017, the Department sent to the applicant a procedural fairness letter providing her with an opportunity to comment on the information that she has four near relatives and on 4 June 2017, the applicant responded to the Department confirming that her mother and two brothers are Malaysian citizens who currently reside in Malaysia. She also confirmed that her son is a Malaysian citizen who is currently studying and residing in Canada.

17. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

18. Consequently, the Tribunal is satisfied that the applicant does not meet regulation 1.15.

19. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian Relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.  Therefore, 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. There is no evidence before the Tribunal that the applicant meets the criteria of the other two subclasses, namely subclass 836 (Carer) or subclass 838 (Aged Dependent Relative).

    DECISION

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

    Antoinette Younes

    
    Senior 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).