Macleod (Migration)

[2022] AATA 2275

Macleod (Migration) [2022] AATA 2275 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Connor Malcolm MacLeod

CASE NUMBER:  2017758

HOME AFFAIRS REFERENCE(S):          CLF2020/62663

MEMBER:David Crawshay

DATE:7 April 2022

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 07 April 2022 at 1:27pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – there were near relatives of the applicant who were not usually resident in Australia – applicant’s brother is offshore – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359

Migration Regulations 1994, r 1.03,1.15, Schedule 2, cls 835.212, 835.223

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 Home Affairs on 26 November 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).

2. The applicant applied for the visa on 10 September 2020. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212, which requires an applicant to be a remaining relative of an Australian relative.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate found that there were near relatives of the applicant who were not usually resident in Australia. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

4. The applicant appeared before the Tribunal on 7 April 2022 to give evidence and present arguments. At hearing, the applicant told it that his father, Mr Peter MacLeod, and his brother, Mr Kieran MacLeod, were able to be reached by telephone in order to give evidence. However, it was mutually agreed that their testimony would not affect the outcome of the matter, and they were therefore not called upon to give evidence. The hearing was conducted remotely as an audio hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this matter is whether the applicant is a remaining relative of an Australian relative.

7. The visa application was made on the basis that the applicant is the remaining relative of Mr Peter MacLeod, whom the 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).

8. In this case, the evidence in front of the Tribunal shows that Mr Peter MacLeod is the applicant’s father and an Australian permanent resident. Therefore, he is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

9. 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. 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.

    No near relatives: reg 1.15(1)(c)

11. 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.

12. “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.

13. The delegate based her decision on information that was contained in the applicant’s Form 47OF application form dated 3 September 2020. This information was that the applicant had listed a brother, Mr Kieran Alexander MacLeod, as residing in Canada at that time; and that the applicant declared Kieran not to be an Australian citizen, Australian permanent resident or New Zealand citizen. The delegate also pointed to Department records confirming that Kieran was not usually resident in Australia and was not an Australian citizen, Australian permanent resident or New Zealand citizen.

14. Based on this information, the delegate found that the applicant did not satisfy the requirements of r.1.15(1)(c).

15. On 15 March 2022, and in response to a letter of request under s.359(2) of the Act, the applicant sent an email to the Tribunal attaching an undated letter and further documents.

16. In his letter, the applicant sought to explain why his brother should be considered a usual resident of Australia:

    ·Kieran moved to Australia when he was 15 years old and left when he was 20 or 21 to study in Toronto;

    ·He was then involved in an accident at the age of 23 that resulted in spinal damage and paralysis;

    ·He returned to Canada to receive medical treatment as the family could not afford the costs of treatment in Australia (he had no medical insurance);

    ·In November 2019, Kieran returned to Australia for physiotherapy and left to receive experimental medical treatment overseas;

    ·This happened shortly before COVID-19 hit Australia and he was unable to return to Australia following the treatments

17. In conclusion, the applicant submitted as follows:

    My argument is that Kieran’s intention is to return and live in Australia and is a usual resident however, due to a series of unfortunate events (becoming paralysed and Covid preventing him from returning in 2020) he was not able to return here and specifically during the time of my application for the Remaining relative visa.

18. The documents that accompanied the undated letter include three hospital reports and an x-ray from May 2019 when Kieran was involved in a motorbike accident in Thailand, a letter from Kieran dated 7 March 2022 explaining the circumstances of his treatment and why he was unable to travel to Australia, two visa grant notification letters in respect of the applicant’s sister, Jenna, and his father dated 12 December 2019, and a notification of approval of Australian citizenship in respect of his mother, Tatjana, dated 3 March 2022.

19. At hearing, the applicant told the Tribunal that even though he had not met the criteria of being a remaining relative, his situation should be seen as an “exception”. The Tribunal asked the applicant to confirm that he had declared in his application form that Kieran had never been an Australian citizen, Australian permanent resident or New Zealand citizen. He confirmed that Kieran had never been a permanent resident but that he had been a temporary resident. The Tribunal informed the applicant that Kieran must have needed to have been an Australian citizen, Australian permanent resident of New Zealand citizen in addition to being usually resident in order to satisfy r.1.15(1)(c). The applicant indicated that this was correct.

20. The Tribunal has considered the evidence in front of it. Based on this evidence, it accepts that Mr Kieran MacLeod is the applicant’s brother. It finds that Kieran was not an Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time of application. Nothing in the applicant’s undated letter or at hearing affects this finding.

21. Based on these findings, the Tribunal is not satisfied that the applicant had no near relatives other than near relatives who were Australian citizens, Australian permanent residents or eligible New Zealand citizens at the time of application. Therefore, r.1.15(1)(c)(ii) is not met. As this is a cumulative requirement, r.1.15(1)(c) is not met in its entirety.

22. As r.1.15(1)(c) is a requirement that must be met by the applicant if he is to satisfy the definition of remaining relative, he is not a remaining relative.

23. The applicant therefore does not satisfy cl.835.212, which is a requirement for the grant of a Subclass 835 visa.

24. 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. There is no evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl.836.212, or that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

25. The evidence before the Tribunal indicates that the applicant was born in 1994. The Tribunal finds that he is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as he is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of “aged dependent relative” in r.1.03 for cl.838.212 of Schedule 2 to the Regulations.

    DECISION

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

    David Crawshay
    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).