Maharaj (Migration) - [2025] ARTA 137

MAHARAJ (MIGRATION) [2025] ARTA 137 (7 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Mashnil Prasad Maharaj
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2018272

Tribunal:General Member J Owen
Place:Sydney
Date: 7 February 2025
Decision:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
I, General Member J Owen certify that this is the
Tribunal's statement of decision and reasons
Statement made on 07 February 2025 at 1.54pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – applicant’s sister/sponsor an Australian permanent resident – another near relative (mother) not usually resident in Australian and not citizen or permanent resident – mother left family home when applicant young, and no further contact – applicant raised by other relatives, and aunt and uncle’s attempts to adopt – mother still near relative for purposes of visa – applicant not eligible for other subclass visas – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(c), (2), Schedule 2, cls 835.212, 835.221

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 December 2020 to refuse to grant the visa applicant a Other Family (Residence) (Class BU) Subclass 835 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a 31-year-old male Fijian national. The applicant applied for the visa on 10 November 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.
The delegate refused to grant the visa on the basis that cl 835.212 was not met because at the time of application the applicant had a near relative, his parent and biological mother Mrs Binuka Devi Singh who was not usually resident in Australia and was not an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen. The applicant had declared that his parent and biological mother’s country of residence is Fiji. He also declared that his parent and biological mother is not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. The applicant subsequently did not meet subregulation 1.15(1)(c) and did not meet the definition of Remaining Relative at reg. 1.15.
The applicant appeared before the Tribunal on 4 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s uncle Mr Satya Prasad and his aunt Mrs Usha Prasad.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
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 Miss Upashna Maharaj, who 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: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild, aunt, uncle or niece or nephew (or their step equivalents).
In this case Miss Upashna Maharaj is the applicant’s sister and an Australian permanent resident and therefore is an Australian relative for these purposes.
DECISION
Is the applicant a remaining relative of an Australian relative?
To be granted a Subclass 835 visa, the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at the time of application and continue to be a ‘remaining relative’ at the time of decision: cl 835.212 and cl 835.221. ‘Remaining relative’ is defined in reg 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, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the applicant and is ‘usually resident in Australia’.
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)
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, stepparent (for visa applications made prior to 1 July 2009), stepbrother or stepsister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or stepchild, 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.
At the Tribunal’s hearing, the applicant stated he lived with his uncle Mr Satya Prasad and his aunt Mrs Usha Prasad. He stated he had been in Australia since December 2019 after arriving on a Tourist visa and had lived with them since. He stated he was not currently working, though had been undertaking studies in nursing.
The applicant explained that his biological father Mr Anil Prasad deceased on 11 July 2012, a claim the Tribunal accepts. He stated he had no other siblings other than his sponsor and sister Miss Upashna Maharaj who is an Australian permanent resident. Much of his extended family resides in the United States.
The Tribunal noted the applicant’s correspondence received on 16 January 2025 that states he was only four and a half years old when his biological mother Mrs Binuka Devi Singh left the family home. He stated that he was subsequently mostly looked after by his grandmother, his father (both now deceased) as well as aunties. He stated that his education and wellbeing were supported by his late father.
The applicant submits that after his aunt Mrs Usha Prasad migrated to Australia in 2001, he was left with his grandmother, father, and sister. He states that Mrs Prasad and her husband Mr Satya Prassad were very supportive of him and his family through financial support, support with education, and general emotional support. The Tribunal was impressed with the oral testimony and evidence of the Prasad’s at its hearing and accepts that both have provided considerable long-term support to the applicant. The Tribunal notes the extensive documentation they have provided including their own wills that demonstrate they are ultimately leaving their estate, including their real property, to the applicant and his sister. There can be no doubt the Prasad’s are totally committed to the applicant and his sister and have played a key role in their upbringing.
The applicant and the Prasad’s explained at the Tribunal’s hearing that after the death of the applicant’s father in July 2012, the Prasad’s (who have no children themselves) made efforts to adopt the applicant and his sister, the sponsor, through the Family Court of Fiji. The applicant submits that support was obtained from the Adoption Office in Brisbane. The Tribunal notes that the Prasad’s raised the challenges they were having with the proposed adoption of the applicant and his sister with the Queensland Government in August 2012. The applicant stated to the Tribunal that delays by the Fijian authorities in progressing this process meant that by the time an application was lodged with the Australian High Commission, the applicant was now eighteen years and six months old, precluding the Prasad’s from adopting the applicant under Fijian law due to his age.
The applicant explained that his grandmother (who took on much of the role of his biological mother) passed away in November 2018. The applicant stated he continued his studies at Fijian National University (FNU).
The applicant submitted his only relative in Fiji now was his youngest aunt who has her own family of five.
In relation to his biological mother (Ms Binuka Devi Singh), the applicant submits he has had no contact with her for twenty-four years. To discover her whereabouts, he stated his Brisbane lawyers consulted lawyers in Fiji and a private investigator was employed. The applicant stated the investigator discovered that the applicant’s biological mother was alive and residing in Fiji.
A statutory declaration from the applicant’s biological mother, Ms Binuka Devi Singh was submitted dated and signed 14 June 2022. In the correspondence Ms Devi Singh states she left the family home in January 1999 and, after some counselling, decided she would not return to the home where her husband (the applicant’s father), and the applicant and his sister (the sponsor of this visa) were residing.
Ms Binuka Devi Singh writes that she divorced the applicant’s father in January 2002, and left her two children including the applicant at the family home as she found it extremely difficult to look after them. Ms Devi Singh stated there were family to look after the applicant and his sister after she left who were very supportive of him. She furthermore states she has not contributed “anything towards their growth, development, and education. I totally failed as a mother.” She states she has nothing to do with the applicant and the sister.
The Tribunal has considered the testimony and submissions of the applicant, his uncle Mr Satya Prasad, and his aunt Mrs Usha Prasad. The Tribunal accepts their evidence as genuine and factual. The Tribunal accepts the applicant has had no relationship with his biological mother since she left the family home in January 1999, and that his father and grandmother initially, and subsequently his aunt and uncle have supported him since.
On the basis of the evidence before it, the Tribunal accepts that the applicant has had no contact with his parent and biological mother Ms Binuka Devi Singh since January 1999 after she abandoned the family and departed the family home. On the basis of a range of evidence, including that submitted by Ms Devi Singh herself, the applicant’s biological mother abandoned her relationship with himself (and his father and sister), when he was around four and a half years of age.
Whilst the Tribunal accepts these submissions, as it explained at the Tribunal hearing, this does not mean in law that the applicant’s biological mother Ms Binuka Devi Singh ceases to be an “immediate relative” or “near relative” of the applicant.
The Tribunal notes that the quality of the relationship between the applicant and his parent and biological mother is of no consequence in determining whether the applicant meets reg 1.15(1)(c). The question is simply one of fact: does the applicant have other living ‘near relatives’ – defined in reg 1.15 as a ‘parent, brother, sister, stepbrother or stepsister of the applicant’ who are not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, and are not usually resident in Australia?
On the evidence before the Tribunal, the applicant clearly does so: his biological mother Ms Binuka Devi Singh who is a parent of the applicant. The Tribunal notes from the applicant’s Form 47OF Application for migration to Australia by other family members that at Question 58, he has listed under ‘Parents’ his biological mother Ms Binuka Devi Singh. He has listed Ms Devi Singh’s country of current residence as Fiji and answered ‘No’ to the question ‘is this person an Australian citizen, New Zealand citizen, or Australian permanent resident?’. In his own evidence, he has confirmed that his biological mother is a resident of Fiji, and is not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
This evidence is further supported by the applicant’s own written submissions to the Tribunal that states the applicant’s biological mother is living and resident in Fiji. There is no evidence or claim that she is either an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
On the basis of the oral testimony of the applicant and witnesses at the Tribunal hearing, the application, and the written submissions of the applicant, 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.
The Tribunal finds the applicant’s biological mother and parent, Ms Devi Singh, is not resident in Australia and is not an Australian citizen, permanent relative or eligible New Zealand citizen. The Tribunal finds the applicant’s biological mother is a ‘near relative’ of the applicant.
The Tribunal subsequently finds that the applicant does not meet reg 1.15(1)(c).
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 and at the time of decision for the purposes of cl 835.212 and cl 835.221.
At the hearing the applicant offered to sign documentation that he would never sponsor or support his biological mother Mrs Binuka Devi Singh for a visa to enter Australia. The Tribunal notes his statement, but explained to him this was ultimately irrelevant as to the criteria for the grant of the visa, and the specific issue being considered, namely does the applicant have any near relatives that are not are not resident in Australia, and are not an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.
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, nor 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.
The evidence before the Tribunal indicates that the applicant was born on 15 January 1994. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 838 (Aged Dependent Relative) visa as the applicant 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 reg 1.03 for cl 838.212 of Schedule 2 to the Regulations.
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.
The Tribunal has a great deal of sympathy for the applicant’s Australian citizen aunt and uncle who the evidence suggests made extensive efforts over the years to include the applicant and his sister, the sponsor, in their family. The Tribunal accepts the applicant is a valued member of their close family.
The Minister has powers under the Act to replace a decision of the Tribunal on an applicant’s case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so. The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention. The Tribunal explained the process of requesting Ministerial intervention at its hearing.
Having regard to the applicant’s circumstances and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal has not itself in this case referred the matter to the Department to be brought to the Minister’s attention. The Tribunal nevertheless notes the applicant retains the ability to do so on the basis of what it may consider to be unique or exceptional circumstances.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Date(s) of hearing: 4 February 2025
Representative for the Applicant: Mr Rodney Sahay