Mercado (Migration)

[2020] AATA 3369

Mercado (Migration) [2020] AATA 3369 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Richard Mercado

CASE NUMBER:  1915894

DIBP REFERENCE(S):  CLF2018/368316

MEMBER:Kira Raif

DATE:1 July 2020

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 01 July 2020 at 8:55am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – ‘daily care and control’ – no near relative requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15; Schedule 2, cl 835.212

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 June 2019 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 applied for the visa on 21 December 2018. The delegate refused to grant the visa 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 applicant appeared before the Tribunal by teleconference on 11 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino 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). Relevantly to this matter, the primary criteria to be met include cl.835.212.

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, which is set out in the attachment to this decision.

6. 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’.

7. 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.

   Is the applicant a remaining relative of an Australian relative?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed to be divorced and provided with his application a copy of the Divorce Order issued in August 2018. The applicant stated in his application that he had a child born in January 2007, who was resident in the Philippines with a grandmother and was not an Australian citizen or permanent resident or eligible New Zealand citizen.

9. The delegate noted that the applicant had not provided evidence to demonstrate that his son, who was a minor, was wholly or substantially in the applicant’s daily care and control. The delegate notes that the child was not usually resident in Australia and was not an Australian citizen or permanent resident. The delegate found that this child was a near relative.

10. In oral evidence the applicant confirmed that his mother and two siblings reside in Australia and a chid in the Philippines. He divorced the child’s mother in 2018. The applicant said that  the child lives with the maternal grandmother and he provides financial support to the child. The applicant said that the divorce order provides that both he and his ex-wife have parental responsibilities towards the child. The applicant said that the divorce arrangement has given him the responsibility to provide financial support to his son.

11. The applicant stated that he came to Australia around June 2016 and since that time the child had been living with his grandmother in the Philippines. They planned to “start life” in Australia first and then bring their son to Australia after about a year. Since he came to Australia, the applicant said he visited Philippines once in 2019 for about two months.

12. The applicant told the Tribunal that he calls his son weekly and sends money regularly except for the past 2-3 months due to the loss of work. The applicant said he plans to start sending money again shortly. The applicant described what he and his son talk about. The applicant said his son attends St Louis University high school. He’s studying Maths, English, Science and PE. The applicant said that it is the child’s grandmother who interacts with the school and teachers. The applicant said he sends the money to the child’s grandmother who then makes the daily financial arrangements. The applicant states that he messages his son once or twice a week. The applicant states that the grandmother is very strict and controls what the child does on a daily basis.

13. On 23 and 24 June 2020 the applicant provided further documentary evidence to the Tribunal. This includes evidence of his communication with his son and with his mother in law, evidence of money transfers, photographic evidence and other materials.

14. The Tribunal accepts the applicant’s evidence and accepts that the applicant provides financial support to the child and also that he has contact with the child. The Tribunal also accepts that  the applicant has been communicating with his son and his mother in law and provided financial support to them. However, that is not sufficient to establish the daily care and control. The applicant’s evidence is that daily activities – such as taking meals, schooling, clothing – are managed by the child’s grandmother. The applicant told the Tribunal that it is the grandmother who interacts with school teachers and ‘controls what the child does on a daily basis’. The applicant’s evidence suggests that it is the grandmother who makes decisions in relation to the child in these areas of daily living. The Tribunal is not satisfied the applicant plays a meaningful role with respect to the child’s daily activities or that he is involved in decision-making in relation to the child’s daily life. The Tribunal is not satisfied that the applicant had delegated the daily care and control responsibilities to the child’s grandmother.

15. The applicant’s evidence is that once he has a stable job, he wants to bring his son to Australia and he misses his child a lot. The applicant’s representative submits that it was always the applicant’s intention to bring his son to Australia but due to Covid-19, these arrangements had been delayed. The Tribunal acknowledges that evidence but it must consider the situation at the time of this decision, not the applicant’s future aspirations. There is no evidence that at present, any arrangements have been made for the child’s migration to Australia and the applicant does not claim that such arrangements have been made.

16. The Tribunal is not satisfied the applicant’s child is in his daily care and control. As such, the Tribunal finds that the child is a near relative for the purpose of r. 1.15(1)(c). The child does not reside in Australia and is not an Australian citizen, permanent resident or eligible New Zealand citizen. The Tribunal is not satisfied the applicant has no near relatives. He does not meet the definition of ‘remaining relative’. The applicant does not meet cl. 835.212 and cl. 835.221.

17. The applicant was born in 1980. He is not old enough to be granted an aged pension and does not meet the requirements for the grant of the Aged Dependent Relative visa. There is no evidence that the application was accompanied by evidence that the applicant sought the relevant assessment and the applicant does not claim to be a Carer of another person. The Tribunal is not satisfied the applicant made a valid application for a Carer visa and in any case, is not satisfied that the applicant is a carer of another person. He does not meet the requirements for the grant of a Carer visa.

    Conclusion

18. 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

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

    Kira Raif
    Senior Member