Lenhardt (Migration)

[2017] AATA 900

Lenhardt (Migration) [2017] AATA 900 (19 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tibor Lenhardt

CASE NUMBER:  1622512

DIBP REFERENCE(S):  CLF2016/45531

MEMBER:Kira Raif

DATE:19 May 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 19 May 2017 at 8:41am

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Remaining relative of an Australian relative – Near relative outside Australia – Adult child from former relationship

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 835.212, cl 835.221, r 1.03, r 1.15
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 13 December 2016 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 is a national of Hungary, born in March 1966. He applied for the visa on 28 July 2016. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate found the applicant was not a remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hungarian and English languages. The applicant was represented in relation to the review by his registered migration agent. 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 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).

5. 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. 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’.

6. 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.

   Is the applicant a remaining relative of an Australian relative?

7. The applicant stated on the application form that his father is deceased and his mother and sister live in Australia. The applicant stated that he has a child, born in March 1991, who is a national of Hungary and resides in Italy.

8. In a statement that accompanied the application, the sponsor claims that the daughter resides in France and that the applicant has no contact with her anymore due to personal circumstances. In his submission to the Tribunal of 10 May 2017 the applicant explains that his daughter is a daughter of his former relationship, which has ended in divorce, and he has no contact with his daughter, is not aware of her whereabouts and has no interest in her affairs. The Tribunal acknowledges that evidence and accepts that this may be the case. However, clauses 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 such relationships.

9. The Tribunal finds, having regard to the applicant’s evidence, that the applicant’s daughter does not reside in Australia and is not Australian citizen, permanent resident or an eligible New Zealand citizen. The Tribunal finds the daughter is a ‘near relative’ as defined in r. 1.15(2), irrespective of whether or not there is any contact between the applicant and his daughter. 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.

10. The applicant claims in his written submission to the Tribunal that he is alone in Hungary, that all his relatives are in Australia and that it would be manifestly unfair for him to be denied a visa. However, the Tribunal has found that the applicant does have a near relative outside of Australia and for that reason he does not meet the requirements for the grant of the Remaining Relative visa. The Tribunal has no discretion in the matter.

11. 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 applicant is not old enough to be granted an age pension under the Social Security Act 1991 and there is no evidence of his dependence. He therefore does not meet the definition of the term ‘aged dependent relative’ in r. 1.03. The applicant does not claim to be a carer and has not provided the relevant Carer Certificate to meet the requirements for the grant of the Carer visa.

    Conclusion

12. 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

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

    Kira Raif
    Senior Member