Kumar (Migration)

[2019] AATA 1383

Kumar (Migration) [2019] AATA 1383 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lawrence Praveen Kumar

VISA APPLICANTS:  Mr Lawrence Sanjay Kumar
Mrs Sangeeta Kumar
Miss Cynthia Sanjana Kumar
Mr Arush Sanjesh Kumar

CASE NUMBER:  1727747

DIBP REFERENCE(S):  OSF2016/078978

MEMBER:Margie Bourke

DATE:8 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 April 2019 at 10:57am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining relative) – remaining relative – brother of the review applicant – no near relatives requirement – primary visa applicant’s spouse has near relatives who reside in Canada, the US and Fiji – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15; Schedule 2, cls 115.211, 115.221, 115.311

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 12 September 2017 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 visa applicants applied for the visa on 30 December 2016. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.115.211.

3. The delegate refused to grant the visas on the basis that cl.115.211 was not met because the delegate was not satisfied the primary visa applicant met the criteria for remaining relative in r.1.15.

4. The review applicant appeared before the Tribunal on 25 March 2019 to give evidence and present arguments.

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 application was made on the basis that the primary visa applicant is the remaining relative of the review applicant, Lawrence Praveen Kumar, who the primary visa applicant claims is his 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).

7. Based on the birth certificates of the review applicant and the primary visa applicant, which record their parents’ names, I am satisfied that they are brothers, and close relatives within the meaning of r.1.03. Based on the certificates of Australian citizenship, I am satisfied the review applicant is an Australian citizen which was granted in June 2012. Based on the submissions, references and financial documents provided I am satisfied the review applicant is usually resident in Australia.

8. Therefore I am satisfied the review applicant is an Australian relative for the purposes of consideration of r.1.15, and is a relative of the primary visa applicant within the meaning of r.1.03.  In this case Lawrence Praveen Kumar is the primary visa applicant’s brother and an Australian citizen, and therefore is an Australian relative for these purposes.

9. I am satisfied based on the marriage certificate that the second named visa applicant is the spouse of the primary visa applicant.  I am satisfied based on the identity documents provided that the third and fourth named visa applicants are the children of the primary and second named visa applicants. I am satisfied that the second, third and fourth named visa applicants are members of the family unit of the primary visa applicant within the meaning of r.1.12(1)(a) and (b) respectively.

   Is the primary visa applicant a remaining relative of an Australian relative?

10. To be granted a Subclass 115 visa the primary visa 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.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

11. 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 visa applicant and is ‘usually resident in Australia’.

12. The visa 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 visa applicant is an adopted child.

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

13. Regulation 1.15(1)(c) requires that the visa 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. At the time the primary visa applicant lodged the application for the visa on 29 December 2016, he recorded in the application form that his mother was deceased, and his father resided in Fiji.  He recorded his two brothers as his only siblings and that they lived in Australia. I have considered the death certificate provided by the review applicant, and I am satisfied that the primary visa applicant’s and the review applicant’s father died in Fiji on 25 April 2017.  I am satisfied that the primary visa applicant has no near relatives at the time of this decision, except his two brothers who are usually resident in Australia and are Australian citizens.

16. At the time the primary visa applicant lodged the application for the visa on 29 December 2016, he recorded in the application form that his spouse’s mother resided in Canada, that his spouse had a brother who resided in Fiji, and two sisters, one of whom resided in Canada and one of whom resided in the US.  At the hearing the review applicant stated that the facts relating to the country of residence for the second named visa applicant, the relatives of his brother’s spouse, remained unchanged.  This was consistent with the review applicant’s written submission to the tribunal dated 8 November 2017. I accept that the primary visa applicant’s spouse has near relatives who reside in Canada and the US and Fiji.

17. The review applicant stated he did consider the legislative requirements were fair.  He stated that he himself had one remaining relative who lived out of Australia, who was the primary visa applicant, now that his father had died. I discussed with him that the definition of remaining relative in r.1.15 required the visa applicant and his or her spouse to have no near relatives other than near relatives who are usually resident in Australia, and who are Australian citizens or Australian permanent residents or eligible New Zealand citizens. I accept the written and oral evidence in this matter.  I find the primary visa applicant does not meet the definition of remaining relative in r.1.15(1)(c).

18. The review applicant stated he understood the legislative requirements although he did not consider they were fair in his case. The review applicant stated he did not wish the tribunal to call the primary visa applicant or the second named visa applicant to give evidence. He stated he understood they did not meet the criteria.  He stated there was nothing they could say to change the circumstances. He stated he did not wish for them to be upset.

19. I explained to the review applicant that he could apply to the Minister, who had a discretionary power to make a decision contrary to the legislative requirements. The review applicant advised he did not wish to make this application and he did not wish to apply to the tribunal to recommend this course.

20. For the above  reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore the primary visa applicant does not meet the requirements of  r.1.15(1)(c). Accordingly the primary visa applicant does not meet the criteria for remaining relative in r.1.15(1), and is not a remaining relative for the purposes of cl.115.211.

    Secondary visa applicants

21. Cl.115.311 requires the secondary visa applicant to be members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 115.21. Based on the application forms I am satisfied that the secondary visa applicants made a combined application with the primary visa applicant.  As stated above, based on the marriage certificate, I am satisfied the second named visa applicant is the spouse of the primary visa applicant, and is a member of his family unit within the meaning of r.1.12(1)(a).  Based on the identity documents and other submissions I am satisfied that the third and fourth named visa applicants are the biological children of the primary visa applicant and the second named visa applicant.  I am satisfied that the third and fourth named visa applicants  are aged under 18 years, and are the dependent children and are members of the family unit of the primary visa applicant within the meaning of r.1.12(1)(b).

22. As I am not satisfied that the primary visa applicant meets the requirements of cl.115.211, it follows he is not a person who satisfies the primary criteria in Subdivision 115.21. Therefore the secondary visa applicants are not the members of a family unit of, and did not make a combined application with, a person who satisfies the primary criteria of Subdivision 115.21.  It follows the secondary visa applicants do not meet the criteria of cl.115.311.

23. For the reasons above, the visa applicants do not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Margie Bourke
    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).