Kaur (Migration)

[2018] AATA 3532

Kaur (Migration) [2018] AATA 3532 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Manjit Kaur

CASE NUMBER:  1717452

DIBP REFERENCE(S):  CLF2016/90217

MEMBER:Linda Holub

DATE:8 August 2018

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 August 2018 at 11:30am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Whether the applicant is the ‘remaining relative’ of an ‘Australian relative’ – Where the sponsor is the child of the applicant – Children do not fall within the definition of ‘Australian relative’ – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15, Schedule 2, cls 835.212, 835.213, 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 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 21 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.835.213.

3. The delegate refused to grant the visa on the basis that cl.835.213 was not met because the sponsor declared that she is the child of the visa applicant.  A child is not a person, who, under regulation 1.15 can sponsor an applicant for this visa class.

4. The applicant appeared before the Tribunal on 31 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The visa application was made on the basis that the applicant is the remaining relative of Roopinder Kaur CHAHAL, who the applicant claims is their 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).

2. In this case Roopinder Kaur CHAHAL is the applicant’s child and therefore is not an Australian relative for these purposes.

Is the applicant a remaining relative of an Australian relative?

1. 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.

2. 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’.

10) 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.

11) The application indicates that the applicant is sponsored by her daughter who is an Australian citizen.

12) At hearing the Tribunal discussed the application with the applicant and explained to her that to be eligible for that visa type the applicant must be a remaining relative of an Australian relative who is a parent, brother, sister, step-parent step-brother or step-sister of the applicant.

13) The applicant explained that both her children live in Australia but that only her daughter is an Australia citizen.  Her son is also both supporting her application but as he is a permanent resident he cannot formally sponsor her application.  The applicant stated that her daughter was not in attendance at the hearing as she was work. 

14) The Tribunal considered whether the application had been completed correctly and following a further discussion with the applicant is satisfied that the applicant and the sponsor and their relationship to each other were correctly completed on the form.  Having done so, the Tribunal put this to the applicant and again explained that under the provisions of the particular visa subclass a person can sponsor a BU-835 applicant if that person is a parent, brother, sister and step-parent, step-brother or sister of the applicant.  As the sponsor is her child she is not eligible for a grant of a BU-835.  The Tribunal provided an opportunity for the applicant to add anything further.  The applicant asked the Tribunal what she should do. The Tribunal explained that it has no discretion in the matter and is not in a position to offer her with migration advice but as she is represented by her migration representative, she should seek further advice from him.

15) The applicant’s migration representative requested an opportunity to provide a written submission.  The Tribunal agreed to this request and provided until the close of business on 6 August 2018 for him to do so.  At the time of this decision no further submissions were received.

The requirement to be a parent or sibling: r.1.15(1)(a)

16) The Australian relative is not a parent, brother, sister, step-parent, step-brother or step sister of the applicant. As the Australian relative in this case is the daughter of the applicant, r.1.15(1)(a) is not met.

CONCLUSION

17) 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

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

Linda Holub
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).