Kulwant Kaur (Migration)
[2023] AATA 4040
•6 November 2023
Kulwant Kaur (Migration) [2023] AATA 4040 (6 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Kulwant Kaur
CASE NUMBER: 2001380
HOME AFFAIRS REFERENCE(S): CLF2019/65232
MEMBER:Michael Ison
DATE:6 November 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Statement made on 06 November 2023 at 5:16pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – son not a remaining relative as defined for this subclass – near relative other than Australian citizens or permanent resident – another son living in third country, with no contact for some time – not eligible for other subclasses – request for referral for ministerial consideration – length of stay, closeness of relationships and few family or friends in home country – no unique or exceptional circumstances resulting in serious harm or ongoing hardship – applicant can seek ministerial consideration directly – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359, 359A, 359B(2)
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(a), (c), (2), 4.17, Schedule 2, cl 835.111, 835.212, 835.213(b), 835.221CASE
Davis v MICMSMA [2023] HCA 10Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is Ms Kulwant Kaur who is 61 years old and is a national of India. According to documents and statements provided by Ms Kaur, which the Tribunal accepts, Ms Kaur is the mother of two sons and her husband died in 1991. Ms Kaur is referred to as the applicant in these reasons for decision.
The applicant first arrived in Australia on 30 June 2016 as the holder of a Visitor (Class FA) (Subclass 600) visa. The applicant departed Australia on 19 December 2016.
On 27 April 2017 the applicant was granted a second Subclass 600 visa and arrived in Australia on 8 May 2017, departing Australia on 11 October 2017. The applicant arrived in Australia a second time using her second Subclass 600 visa, on 18 October 2017 before departing Australia on 8 March 2018.
On 10 April 2018 the applicant was granted a third Subclass 600 visa and arrived in Australia on 19 April 2018, departing Australia on 7 September 2018. The applicant arrived in Australia a second time using her third Subclass 600 visa, on 10 September 2018 before departing Australia on 19 February 2019. The applicant arrived in Australia a third time using her third Subclass 600 visa, on 12 March 2019.
On 24 August 2019 the applicant was granted a fourth Subclass 600 visa that was valid to 12 December 2019.
On 7 November 2019 the applicant applied for an onshore Other Family (Class BU) (Remaining) (Subclass 835) visa on the basis that the applicant is a remaining relative of her son Mr Kulwinder Singh. The applicant’s application for the visa is sponsored by Ms Ranbir Kaur, who is the wife of Mr Kulwinder Singh and therefore the daughter-in-law of the applicant. It is the refusal to grant the applicant that Other Family visa that is the subject of this review.
Mr Kulwinder Singh is 39 years old, was born in India and according to the evidence of his wife, Ms Ranbir Kaur, acquired Australian citizenship in August 2022.
Ms Ranbir Kaur who is 34 years old, was born in India and acquired Australian citizenship by conferral on 8 September 2021 according to her Government movement records obtained by the Tribunal.
Shortly after applying for the Subclass 835 Remaining Relative visa the applicant was granted a Bridging A (Class WA) (Subclass 010) visa on 11 November 2019, which she continues to hold at the time of this decision. The applicant’s Bridging A visa has condition 8101 (No Work) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.
The primary decision of a delegate of the Minister
The applicant provided the Tribunal with a copy of the primary decision.
The applicant applied for the visa on 7 November 2019. 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 Regulations. Relevantly to this matter, the primary criteria to be met include cl 835.212.
Clause 835.212 of Schedule 2 to the Regulations provides:
The applicant is a remaining relative of an Australian relative.
The term ‘Australian relative’ is defined in cl 835.111 to mean a relative of the applicant who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.
The term ‘remaining relative’ is defined in reg 1.03 as having the meaning set out in reg 1.15. Regulation 1.15 is set out in Attachment One to these reasons for decision. In summary, reg 1.15(1)(a) provides than an applicant for a visa is a remaining relative of an Australian relative if they satisfy the Minister the Australian relative is their parent, brother, sister, step-brother or step-sister of the applicant.
The delegate found that the applicant did not meet reg 1.15(1)(a) and therefore did not meet the requirements of cl 835.212 because her son, Mr Kulwinder Singh, is not a parent, brother, sister, step-brother or step-sister of the applicant.
Regulation 1.15(1)(c) also requires that the applicant have no ‘near relatives’ other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens, subject to some exceptions, including in relation to dependent children, that are not relevant for present purposes.
Regulation 1.15(2) defines a ‘near relative’ as including a child of an applicant who has turned 18 and is not a dependent child of the applicant.
In the application for the Subclass 835 Remaining Relative visa, the applicant wrote (errors in the original):
I want to inform that I have younger Son, Palwinder Singh residing in USA. He got married in 2013 and moved to USA in 2014. Since then I don’t have any Contact with him. He does not care about me. I lived alone in my house till 2016. In 2016 my elder Son, Kulwinder Singh and Daughter-in-law, Ranbir Kaur invited me to Australia. Since then I have been staying in Australia for most of the time. Now my daughter-in-law wants me to stay permanently with them as we have developed a strong bond. Now she is sponsoring me to stay here permanently. I have also got a grand daughter, Agam Kaur and she is attached to me and she does not want me to leave them.
The delegate found as the applicant’s youngest son, Mr Palwinder Singh, who is aged 34, is living in the United States of America and is not dependent on the applicant he is a ‘near relative’ who is not an Australian citizen, Australian permanent resident or an eligible New Zealand citizen and therefore the applicant did not meet reg 1.15(1)(c) and the requirements of cl 835.212 because the applicant has a ‘near relative’ residing outside of Australia.
Who is the applicant’s sponsor and who is the Australian relative?
The applicant’s sponsor does not also have to be the person the applicant claims to be the remaining relative of. The delegate treated Mr Kulwinder Singh, the applicant’s eldest son, as the applicant’s Australian relative. As the quote reproduced in paragraph 19 of these reasons indicates, the applicant considered her daughter-in-law, Ms Ranbir Kaur, to be her sponsor. The Tribunal also notes that on the Department files is a completed Form 40 titled ‘Sponsorship for migration to Australia’ that states Ms Ranbir Kaur is the sponsor, and the form is signed by Ms Ranbir Kaur. The Tribunal finds that Ms Ranbir Kaur is the person sponsoring the applicant’s application for the Subclass 835 Remaining Relative visa.
According to the sponsorship form at the time the applicant applied for the visa, Ms Ranbir Kaur was an Australian permanent resident. At the time of this decision according to Ms Ranbir Kaur’s Australian government movement records, Ms Ranbir Kaur acquired Australian citizenship on 8 September 2021.
According to the primary decision, at the time of that decision Mr Kulwinder Singh was an Australian permanent resident, which the Tribunal accepts.
Clause 835.213 of Schedule 2 to the Regulations requires that the applicant is sponsored by their Australian relative or the spouse of de facto partner of the Australian relative if that person has turned 18, is a settled Australian citizen, is usually resident in Australia and cohabits with the Australian relative: cl 835.213(b). From all the information before the Tribunal, including on the Department file and the oral evidence of the applicant and Ms Ranbir Kaur at hearing, the Tribunal finds that Ms Ranbir Kaur meets each of the requirements of cl 835.213(b)of Schedule 2 to the Regulations and therefore the applicant is validly sponsored for the Subclass 835 Remaining Relative visa.
Irregularities in the primary decision
The copy of the primary decision the applicant provided to the Tribunal dated 15 January 2020 was an incomplete Departmental template of a decision with red text where case specific information should have been inserted but was not. It is attached as Attachment Two to these reasons for decision.
The Departmental file did not contain a copy of the decision the applicant provided to the Tribunal. Instead, the Departmental file only contained a fully completed decision dated 5 February 2020. When Departmental files are provided to the Tribunal, they usually contain a one-page checklist of key documents and issues on the file. The checklist on the Department file for this review includes a handwritten note that the decision was renotified. The Tribunal notes the decision record dated 5 February 2020 does not include any information to indicate it is a renotification of an earlier decision.
As the applicant had not provided the Tribunal with a copy of the decision record on the Department file dated 5 February 2020, the Tribunal wrote to the applicant on 23 August 2023 in accordance with the procedure set out in s 359A of the Act. The Tribunal’s letter included a copy of the decision record dated 5 February 2020.
Invitation to comment on or respond to information pursuant to s 359A of the Act
The Tribunal’s letter to the applicant dated 23 August 2023 was, in part, as follows:
You have provided the Tribunal with a copy of the decision to refuse your application for the Subclass 835 Remaining Relative visa dated 15 January 2020. This letter was titled, in bold, DECISION RECORD. The Decision Record sent to you dated 15 January 2020 was an incomplete Department template document which did not set out the reasons for the decision to refuse your application for the visa.
The Department’s file has been provided to the Tribunal. The Department’s file contains a copy of another Decision Record prepared by a delegate of the Minister that discloses the reasons for the delegate refusing your application for the Subclass 835 Remaining Relative visa. This version on the Department file is dated 5 February 2020 and a copy of that version of the Decision Record is attached. The Department file states the version of the Decision Record dated 5 February 2020 was emailed to you as a renotification of the decision. The Tribunal does not know whether you received the Decision Record dated 5 February 2020 or not.
The Tribunal also notes that the Department’s file does not include a copy of the Decision Record dated 15 January 2020 that was sent to you and a copy of which you provided to the Tribunal.
The Decision Record dated 5 February 2020 states that:
·you applied for the Subclass 835 Remaining Relative visa as the remaining relative of your eldest son, Mr Kulwinder Singh (born [Date]) who resides in Australia as a permanent resident of Australia; and
·in your application you disclosed to the Department that you have another son, Mr Palwinder Singh (born [Date]) who resides in the United States of America as a citizen of that country.
The relevance of this information to your review
As set out in the Decision Record dated 5 February 2020 it is a requirement for the grant of a Subclass 835 Remaining Relative visa that you be the remaining relative of an Australian relative (clause 835.212).
The term ‘remaining relative’ is defined in reg 1.15(1). A copy of the relevant regulations, including clause 835.212 and reg 1.15, as at the time you applied for the Subclass 835 Remaining Relative visa, is attached to this letter.
A person is a ‘remaining relative’ of a person who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen if the other person is a parent, brother, sister, step-brother or step-sister of the applicant and the other person is usually resident in Australia.
In addition, applicants for Subclass 835 Remaining Relative visas must under reg 1.15(1)(c) have no ‘near relatives’ other than near relatives who are an Australian citizen, Australian permanent resident or an eligible New Zealand citizen who are usually resident in Australia.
Regulation 1.15(2) defines a ‘near relative’ as a parent, brother, sister, step-brother or step-sister of the applicant or a child of the applicant who has turned 18 and is not a dependent child of the applicant.
First potential finding: you are not a ‘remaining relative’ under reg 1.15(1)(a)
The Decision Record dated 5 February 2020 states you provided information to the Department showing that Mr Kulwinder Singh is your son, is a permanent resident of Australia and usually resides in Australia. However, as Mr Kulwinder Singh is your son and not your parent, brother, sister, step-brother or step-sister, the Tribunal could rely on this information to find that you do not meet the definition of being Mr Kulwinder Singh’s remaining relative for the purposes of reg 1.15(1)(a).
Second potential finding: you have another ‘near relative’ living outside Australia contrary to reg 1.15(1)(c)
The Decision Record dated 5 February 2020 states you provided information to the Department showing that you have another son, Mr Palwinder Singh, who is a citizen of and usually resident in the United States of America who is over the age of 18 and is not dependent upon you. This means Mr Palwinder Singh is a ‘near relative’, as that term is defined in reg 1.15(2).
The Tribunal could rely on this information to find that you do not meet the requirement in reg 1.15(1)(c) of having no ‘near relative’ other than a near relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen who usually resides in Australia.
The consequences for your review if the Tribunal relies on this information
If the Tribunal were to rely on the information in the Decision Record dated 5 February 2020 to make the potential findings identified above, or either of those potential findings, then the consequences for your review are as follows. That information would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review. This is because if you are found not to meet the requirements of reg 1.15(1)(a) or reg 1.15(1)(c) then you are not a ‘remaining relative’ for the purposes reg 1.15 and therefore do not meet the requirement in cl 835.212 of Schedule 2 of the Regulations of being the ‘remaining relative’ of an Australian relative.
You are invited to give comments on or respond to the above information in writing.
The Tribunal’s letter specified, in accordance with s 359B(2) of the Act and reg 4.17, that the applicant had 14 days to provide comment on or to respond to the information, and specified her response was due by 6 September 2023 but she could apply for an extension of time to respond.
On 5 September 2023 Ms Ranbir Kaur responded on behalf of the applicant as follows (errors in the original):
We applied for tribunal review based on the decision record we got on 15 January 2020. After that we did not keep track of the visa application as we thought the decision has already been taken. Therefore, we were not aware that there was a decision record sent on 5 February 2020. We applied for the review on 28 January 2020 with tribunal. We were waiting to hear from tribunal.
We applied for the subclass 835 as we were of the opinion that we are satisfying the requirements for this visa. But looking at the attached decision record from 5 February2020, the remaining relative has been defined in detail and we understood the reason behind the refusal of visa application for Mrs Kulwant Kaur.
As per our current situation, Mrs Kulwant Kaur can not stay alone in India as there is no one to take care of her. She might go into depression as there is no one in India who She can interact because most of her friends have migrated. She has been living in Australia with her elder son Kulwinder Singh for around 6 years and has got a good understanding of the Australian way of living. She has got a good attachment with her grandchildren. She is finding difficult to get separated from them. We have also got a very strong bonding with her. As She is getting old, we want to spend more time with her. We don’t want to leave her alone as it will be difficult for us to manage the day to day things for her in India while we are in Australia.
We would request to provide us a hearing date so that we can explain our situation in a better way. Also, we would request to give us an extended time to apply for an eligible visa.
Tribunal hearing
The applicant appeared before the Tribunal on 6 October 2023 to give evidence and present arguments, in person. The Tribunal also received oral evidence from Ms Ranbir Kaur who also appeared in person.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review by Mrs Ranbir Kaur, who was authorised by the applicant to receive all communications from the Tribunal to the applicant during this review.
At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether she could understand the interpreter and whether she had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated she could understand the interpreter and did not have any objection to the interpreter retained by the Tribunal. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.
Pre-hearing submissions
The Tribunal received the following submissions on behalf of the applicant prior to the Tribunal hearing, with the documents attached to each submission noted:
27 January 2020
·a one-page statutory declaration from the applicant, unsigned and undated; and
·a translated death certificate of Mr Sukhdev Singh, issued by Chief Registrar (Births & Deaths) Punjab, Chandigarh, India date of registration: 16 February 1991.
5 September 2023
·a one-page undated written statement from Ms Ranbir Kaur, in relation to responding to the Tribunal’s letter dated 23 August 2023; and
·a copy of the Tribunal’s letter sent to the applicant, dated 23 August 2023.
25 September 2023
·a one-page email cover letter from Ms Ranbir Kaur, dated 25 September 2023, confirming attendance at the Tribunal hearing, the need for a Punjabi speaking interpreter and seeking guidance as to what documents should be provided to the Tribunal.
The Tribunal also engaged in other correspondence with Ms Ranbir Kaur in relation to administrative matters associated with this review.
Tribunal decision
The Tribunal has had regard to the oral evidence of the applicant and Ms Ranbir Kaur, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicant’s application for the Remaining Relative visa, the documents provided to the Department in support of that application and copies of communication between the Department and the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was made on the basis that the applicant is the remaining relative of Mr Kulwinder Singh, 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: reg 1.03.
In this case the Tribunal finds that Mr Kulwinder Singh is the applicant’s biological son, is a citizen of Australia and is usually resident in Australia.
However, the Tribunal also finds that Mr Kulwinder Singh is not a “parent, brother, sister, step-brother or step-sister” of the applicant, who is his mother, and therefore the applicant does not satisfy the definition in reg 1.15(1)(a) of being a remaining relative of a relevant Australian relative.
If the applicant sought to rely on Ms Ranbir Kaur, who is an Australian citizen, as her Australian relative, then as Ms Ranbir Kaur is also not a “parent, brother, sister, step-brother or step-sister” of the applicant, the applicant still would not satisfy the definition in reg 1.15(1)(a) of being a remaining relative of a relevant Australian relative.
As the Australian relative in this case is the applicant’s son, Mr Kulwinder Singh, reg 1.15(1)(a) is not met. In the alternative, if the applicant claimed her Australian relative was Ms Ranbir Kaur, reg 1.15(1)(a) is also not met.
The applicant must also have no ‘near relatives’, with the exception of certain relatives in Australia.
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 reg 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.
Based on the visa application of the applicant, confirmed in her oral evidence before the Tribunal, the Tribunal finds that the applicant has a second biological son, Mr Palwinder Singh, who is 34 years of age, married and living in the United States of America at the time of this decision. The applicant’s evidence is that Mr Palwinder Singh has lived independently of her in America for many years.
As the term ‘near relative’ is defined in reg 1.15(2) to include a child of the applicant who has turned 18 and is not a dependent child of the applicant, the Tribunal finds that the applicant has a near relative living outside of Australia being her youngest biological son, Mr Palwinder Singh.
For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore reg 1.15(1)(c) is not met.
Conclusion
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 or at the time of decision for the purposes of cl 835.212 and cl 835.221 respectively.
This causes the Tribunal to find that the applicant does not meet the criteria for a Subclass 835 Remaining Relative visa. In respect of the other visa subclasses in visa Class BU there is no material which would permit a finding that the applicant meets the prescribed criteria for those visas either.
Other visa subclasses: Subclass 836 Carer visa, Subclass 838 Aged Dependent Relative visa
The applicant does not claim to be the ‘carer’ of a resident in Australia for the purposes of the grant of Subclass 836 Carer visa and there is no information before the Tribunal that would indicate the applicant could meet the requirements for the grant of that visa.
The applicant is aged 61 years and does not claim to be old enough to be granted an age pension under the Social Security Act 1991 (Cth) and therefore there is no information before the Tribunal that would indicate the applicant could meet the requirements for the grant of a Subclass 838 Aged Dependent Relative visa.
Request for the applicant’s application to be ‘referred’ to the Minister
Section 351 of the Act states:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3)The power under subsection (1) may only be exercised by the Minister personally.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances
The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.
There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is actually the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their application, irrespective of whether the Tribunal makes such a ‘referral’ or not.
In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be referred to the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.
While the administration of the Ministerial Instructions by the Department has been ruled as unlawful by the High Court of Australia, the Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.
The Ministerial Instructions are not a statement of law but do make it clear that Ministerial Intervention is not part of the visa process and so the Tribunal as presently constituted does not make such referrals lightly.
The applicant explained to the Tribunal that she does not wish to return to India because she is close to her son, to Ms Ranbir Kaur and to her, now three, grandchildren as Ms Ranbir Kaur had another daughter in October 2020 and a son in March 2022. The applicant explained to the Tribunal that there is nothing and no-one for her to return to in India and since 2016 she has spent the majority of her time living in Australia. The Tribunal explained to the applicant and Ms Ranbir Kaur during the hearing the possibility of requesting the Minister to intervene in the applicant’s circumstances, how that process works at the Tribunal level and that irrespective of whether the Tribunal makes a referral or not, the applicant can seek Ministerial Intervention herself.
Ms Ranbir Kaur explained to the Tribunal that the applicant’s husband died when her two sons were young and the applicant raised both boys on her own, in difficult circumstances. The applicant explained that she gave both boys a good education, including her youngest son who obtained a Master of Arts, but then moved to the United States of America, married a woman there and has not spoken to the applicant since.
Ms Ranbir Kaur explained the applicant’s circumstances and her role in their family as follows:
·Ms Ranbir Kaur and the applicant’s son Mr Kulwinder Singh came to Australia independently as international students in 2008 and were married through an arranged marriage in 2014 and Ms Ranbir Kaur first met the applicant after her wedding;
·Their first child, a daughter, was born in 2015, with another daughter born in 2020 and a son in 2022, all by caesarean section;
·When Ms Ranbir Kaur’s eldest daughter was six months old the applicant came to Australia and treated Ms Ranbir Kaur like her own daughter and they have since formed a close bond, a bond Ms Ranbir Kaur described as closer than the bond she has to her own mother;
·The applicant’s son and Ms Ranbir Kaur built a house through the proceeds of them both working, and they were only able to do this because the applicant was able to look after their eldest daughter while they were working;
·The family, including the applicant, moved into the new house in July 2020;
·Ms Ranbir Kaur is a pharmacy technician and worked full-time in a prison, but now works only casually in a prison and works part-time for a pharmacy;
·Ms Ranbir Kaur suffered post-natal depression after the birth of her second daughter in October 2020 and credits the care and support of the applicant for helping her back to good health;
·Mr Kulwinder Singh, the applicant’s son, suffered a work injury as a night shelf filler working for a supermarket and stopped working in 2020 and Ms Ranbir Kaur’s evidence was she was only able to return to work because of the care and support of the applicant;
·Mr Kulwinder Singh started working recently as a test and tag technician and is essentially on light duties with Ms Ranbir Kaur being the main income earner since her husband’s injury;
·When Ms Ranbir Kaur was pregnant with her third child in 2021 and 2022 she caught COVID-19, suffered heart palpitations and ended up in the intensive care unit of a hospital. During this time Ms Ranbir Kaur’s evidence is the applicant did all of her chores at home and helped care for the two children;
·After the birth of Ms Ranbir Kaur’s third child, because it was her third delivery by caesarean section she was restricted in her movements and activities for an extended period and again credits the applicant looking after her and her three children as critical during this time;
·The applicant has formed a very close bond to her three grand children in Australia and it would have a big emotional impact on the whole family if the applicant has to leave Australia; and
·The applicant does not presently have any health conditions but Ms Ranbir Kaur and her husband, the applicant’s son, are concerned for her health and welfare if the applicant has to return to India on her own and live alone in a neighbourhood where most of the houses are empty and she does not know anyone.
The Tribunal has considered the applicant’s circumstances but has decided not to refer her visa application to the Minister for the Minister to consider intervening in the applicant’s case. This does not prevent the applicant from writing to the Minister herself to seek that the Minister intervene in her circumstances.
The reasons the Tribunal has decided not to refer the applicant’s visa application to the Minister are:
·The applicant’s circumstances are not an unintended consequence of the migration legislation;
·The applicant’s last substantive visa was a Visitor visa which is a temporary visa granted in part on the basis of reassurances from applicants for such visas that they will return to their home country before the expiry of the visa, recognising that circumstances can change once someone is in Australia;
·Since first arriving in Australia in June 2016, the applicant has returned to India five times, most recently in February 2019;
·While the Tribunal has considerable empathy and compassion for the applicant’s circumstances and the role she plays in the lives of her Australian citizen son, daughter-in-law and their three children, those circumstances as they have been conveyed to the Tribunal do not appear to the Tribunal to be unique or exceptional circumstances to the extent that might persuade the Minister to intervene;
·The Tribunal also accepts that after having not departed Australia since 12 March 2019, having to depart Australia is likely to cause each of the applicant, her son, Ms Ranbir Kaur and their three children considerable emotional upset. However, there is no medical or similar evidence before the Tribunal that their circumstances would result in serious, ongoing and irreversible harm and continuing hardship to the applicant or their Australian citizen family unit; and
·There are no reasons outside the applicant’s reasonable control that mean she cannot return to India as her home country.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Michael Ison
Senior MemberATTACHMENT ONE - 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).
ATTACHMENT TWO – Decision Record sent to the applicant dated 15 January 2020
The Decision Record dated 15 January 2020 of two pages follows.
Australian Government
Department of Home Affairs
DECISION RECORD
Application details Visa class
Date of visa application Application ID
File number
Visa application charge receipt number
Other Family (Residence) (class BU) Remaining Relative (subclass 835) 07 November 2019
800632206
CLF2019/65232 9015749242
Client name KULWANT KAUR Date of birth [Date] Client ID [Number]
The applicant's claims
Information and evidence considered
I am a delegated decision maker under section 65 of the Migration Act 1958. In reaching my decision I have considered the following:
• relevant legislation contained in the Migration Act and the Migration Regulations 1994
(the Regulations)
• information contained in the Department's Procedural Instructions
• all documents and information provided by the applicant(s)
• where relevant, the Australian and New Zealand Standard Classification of Occupation (ANZSCO) as it is applied to occupation definitions and skill requirements in Australia.
Findings
On the basis of all of the information available to me, including the documents and information the applicant provided, I find that the criteria for the grant of a Remaining Relative visa are not met by the applicant.
Reasons
I have assessed the application and the reasons for my decision are detailed below. A valid application for a Remaining Relative visa has been made by the applicant
A visa cannot be granted unless the relevant criteria specified in" the Migration Act and the
Migration Regulations are satisfied. **** Enter: insert the relevant provision of the Migration
Other Family Assessment Team OFFICE:836 Wellington Street West Perth WA 6005
POSTAL: Locked Bag 7 Northbridge WA 6865
EMAIL: [email protected] WEBSITE: align="center">- 2 -
Act or Migration Regulations **** has not been met by the applicant on the date I made my decision.
Decision
As clause **** Enter: number in Schedule 2 to the Regulations **** is not met by the applicant, I find the criteria for the grant of a Other Family (Residence) visa are not met by the applicant.
Therefore, I refuse the application by the applicant for a Other Family Residence) visa.
Yours sincerely[ Name deleted by Tribunal ]
Position number: [ Number deleted by Tribunal ]
Department of Home Affairs
15 January 2020Other Family Assessment Team
OFFICE:836 Wellington Street West Perth WA 6005POSTAL: Locked Bag 7 Northbridge WA 6865
EMAIL: [email protected] WEBSITE:
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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