Moshfiq (Migration)

[2021] AATA 4853

Moshfiq (Migration) [2021] AATA 4853 (15 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Raffio Moshfiq

VISA APPLICANT:  Ms Fahima Barati

CASE NUMBER:  2003276

HOME AFFAIRS REFERENCE(S):          OSF2017/018635

MEMBER:Meena Sripathy

DATE:15 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 15 December 2021 at 4:41pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – near relative – sponsor son-in-law of visa applicant – not a specified relative – no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), r 1.15(1)(a), (c), (2), Schedule 2, cl 115.211

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 10 February 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 5 April 2017. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 115.211.

3. The delegate refused to grant the visa on the basis that cl 115.211 was not met because the sponsor is the son in law of the visa applicant and their relationship does not meet the requirements of subregulation 1.15(1)(a).  The delegate also found that there was no evidence of the visa applicant’s husband’s death and she has two children who are not Australian citizens or permanent residents and therefore are near relatives as defined in r.1.15(2) and she also does not meet r.1.15(1)(c). 

4. On 20 February 2020 an application for review of the delegate’s decision was made to the Tribunal by Ms Benafsha Shukuri, the visa applicant’s daughter.  Following communication and outreach by the Tribunal regarding the correct person who has standing to apply for review, a new application for review form was submitted by Ms Shukuri’s husband, the sponsor of the visa application, on 14 April 2020.  

5. In July 2020 the review applicant submitted a death certificate for the visa applicant’s husband.

6. On 14 September 2021, the Tribunal contacted the review applicant to advise the matter was constituted to a member who was considering arranging a hearing by video, due to the circumstances of the COVID 19 pandemic and restrictions on holding in person hearings.  The review applicant advised the Tribunal at this time that he had separated from his wife and the visa applicant was currently in Western Australia and he believed that she had a permanent visa. He enquired about a refund of the application fee if he withdrew the application.

7. The Tribunal wrote to the review applicant on 22 September seeking clarification of his intention to withdraw the review application.  On 3 October 20201 the Tribunal received an email from the review applicant’s former spouse, daughter of the visa applicant enquiring about her eligibility for a refund of the review application fee paid by her in February 2020.  The Tribunal responded to explain that only the review applicant can withdraw an application and refunds are only granted in certain limited circumstances. The review applicant did not withdraw the application.

8. On 16 November 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a video hearing on 13 December 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

9. No response to the hearing invitation was received and the review applicant did not join the video conference link via MS teams on the day and at the scheduled time and place. An officer of the Tribunal was present for 30 minutes at the scheduled time, and attempted to contact the review applicant by phone several times.  Having reviewed the Tribunal file, the Tribunal is satisfied that  the review applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing.  The Tribunal attempted contact with the review applicant by phone at the time of the scheduled hearing.  In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa application was made on the basis that the visa applicant is the remaining relative of Benafsha Shakuri, her daughter, who the visa applicant claims is their 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). Departmental systems, as recorded by the delegate in the decision record, indicates Ms Shakuri was an Australian permanent resident at time of application.

12. The applicant was sponsored for the application by the Mr Raffio Moshfiq, her son in law, husband of Benafsha Shakuri, who is an Australian citizen.

    Is the visa applicant a remaining relative of an Australian relative?

13. To be granted a Subclass 115 visa the visa 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 115.211 and cl 115.221. ‘Remaining relative’ is defined in reg 1.15 of the Regulations, which is set out in the attachment to this decision.

14. 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 visa applicant and is ‘usually resident in Australia’: r.1.15(1)(a) and (b).

15. The visa 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 visa applicant is an adopted child: r.1.15(1)(c).

    The requirement to be a parent or sibling: reg 1.15(1)(a)

16. In the present case, Benafsha Shakuri is the child of the visa applicant. She is not, therefore, a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step sister of the visa applicant.  As the Australian relative in this case is the child of the of the applicant, and this is not a specified relative for this provision, reg 1.15(1)(a) is not met.

17. Given this finding, there is no need to go on to consider the other requirements of the definition of remaining relative.  The Tribunal notes that the delegate also found the visa applicant did not meet r.1.15(1)(c) on the basis that the delegate found she had near relatives who were not Australian citizens or permanent residents.  The Tribunal has not considered this any further in the review.

18. For the reason set out above, the Tribunal is not satisfied that the visa applicant is the remaining relative of an Australian Relative at the time of application cl 115.211.

19. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for an Aged Dependent or Carer visa.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

    Meena Sripathy
    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).