Kumari (Migration)

[2017] AATA 91

Kumari (Migration) [2017] AATA 91 (3 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Glenes Ranita Kumari
Miss Sneha Kritika Chand

CASE NUMBER:  1608419

DIBP REFERENCE(S):  CLF2016/28737

MEMBER:Kira Raif

DATE:3 January 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 03 January 2017 at 4:31pm

CATCHWORDS

Migration – Other Family (Residence)(Class BU) visa – Subclass 835 – Remaining relative –Relatives outside of Australia – Quality of contact

LEGISLATION

Migration Act, 1958, s 65 cl 835.212, cl 835.221, r 1.03, r 1.15(1)(c), r 1.15(2)

Migration Regulations 1994, Schedule 2

Social Security Act 1991

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 31 May 2016 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Fiji. The first named applicant (‘the applicant’) was born in June 1981. She applied for the visa on 10 May 2016. The application includes her child, the second named applicant. The delegate refused to grant the visas on the basis that cl.835.212 was not met because the delegate was not satisfied the applicant was the remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 3 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicants are 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).

5. Relevantly to this matter, the primary criteria to be met include cl.835.212 and cl. 835.221.The visa application was made on the basis that the applicant is the remaining relative of an 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).

6. 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.

7. 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’.

   Is the applicant a remaining relative of an Australian relative?

8. 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.

9. ‘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.

10. The applicant stated on the application form that her father resides in Fiji. The applicant also referred to a brother and has not provided evidence of the brother being an Australian resident. The applicant explained to the Tribunal that she has had no contact with her father and brother for many years and had lived away from them since the age of 14. The applicant provided a declaration from Mr Mohammad confirming that evidence.  The Tribunal accepts that this may be the case, however, cl. 835.212 and 835.221 do not require an assessment of whether there is any contact with a near relative. These provisions are concerned with the existence of relatives outside of Australia, not with the quality of contact.

11. The Tribunal finds, having regard to the applicant’s evidence, that the applicant’s father and brother do not reside in Australia and are not Australian citizens, permanent residents or eligible New Zealand citizens. The Tribunal finds they are ‘near relatives’ as defined in r. 1.15(2), despite any lack of contact. The Tribunal is not satisfied that the applicant has no near relatives other than those who are usually resident in Australia and are Australian citizens, permanent residents or eligible NZ citizens. The Tribunal is not satisfied the applicant meets paragraph 1.15(1)(c) of the definition of ‘remaining relative’. The applicant does not meet cl. 835.212. The secondary applicant does not meet cl. 835.311 and cl. 835.321.

12. There is no evidence that the secondary applicant meets the primary criteria for the grant of the visa, including cl. 835.211 and cl. 835.221. In particular, information in the primary decision record indicates that the child’s biological father resides in Fiji.

13. There is no evidence before the Tribunal to indicate that the applicant meets the criteria for the grant of the Aged Dependent Relative and Carer visas. In particular, the applicants are not old enough to be granted an age pension under the Social Security Act 1991. They therefore does not meet the definition of the term ‘aged dependent relative’ in r. 1.03. The applicants do not claim to be a carer and have not provided the relevant Certificate to meet the requirements for the grant of the Carer visa.

14. The applicant also presented to the Tribunal evidence of her employment and spoke about lack of appropriate accommodation in Fiji. Such evidence does not address the issues that arise for Tribunal’s determination.

    Conclusion

15. 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

16. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Kira Raif
    Senior Member