Mugoba (Migration)

[2020] AATA 3260

Mugoba (Migration) [2020] AATA 3260 (16 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sifiso Mugoba
Master Asher Mthabisi Olerato Ojomo

CASE NUMBER:  1900517

DIBP REFERENCE(S):  CLF2018/8167

MEMBER:Kira Raif

DATE:16 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl.835.212 of Schedule 2 to the Regulations; and

·cl. 835.221 of Schedule 2 to the Regulations.

Statement made on 16 June 2020 at 10:17am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative – Australian relative – near relatives – death certificate for the applicant’s father – missing for over 10 years, presumed dead – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 835.212, 835.221; Schedule 4 Public Interest Criterion 4020; rr 1.03, 1.15

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 21 December 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 25 January 2018. The delegate refused to grant the visas on the basis that cl.835.212 was not met because the delegate was not satisfied the applicant was a remaining relative of her Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicants appeared before the Tribunal by teleconference on 16 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor (the applicant’s mother). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 applicants are 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.

6. The visa application was made on the basis that the applicant is the remaining relative of her mother, who the 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: 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).

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. The applicant stated in her application that her mother and son were resident in Australia and that the whereabouts of her father, Trust Mugoba, were unknown. The applicant’s mother provided a statement in which she claimed that  she had no contact with the applicant’s father since 1985.

9. The applicant provided further evidence to the Tribunal in June 2020. This included affidavits from her mother and other witnesses which outlined the circumstances relating to the applicant’s father. Essentially, these indicate that he had been affected and may be killed by the conflict in the country. There is also communication from a lawyer in Zimbabwe explaining how difficult it would be to establish the father’s death. The applicant also provided a death certificate for her father, dated 2009.

10. In oral evidence the applicant said she did not submit the father’s death certificate because they were  naïve when making the application. She said that she never met her father since birth. Her mother had reported her father missing. They approached several lawyers but could not prove her father’s death. Her father was missing since 1980’s. Because her father was missing for over 10 years, he was presumed death and for that reason they were able to obtain the death certificate. The applicant said that she did have the death certificate available at the time the application was made but did not know what she had to provide as they were unrepresented. The sponsor also gave evidence to the Tribunal explaining how the death certificate was obtained and the circumstances surrounding the disappearance of her partner.

11. The Tribunal found the witnesses to be truthful and credible. Despite that, the Tribunal is concerned about the timing of the death certificate. This document was not provided with the primary application and was only presented following the primary decision. In normal circumstances, the Tribunal would have verified the death certificate to confirm the authenticity of that  record. However, the Tribunal was informed by the Department that  due to Covid-19 restrictions, such verification cannot occur at present. Given these constraints, the Tribunal is prepared to accept, for the purpose of this decision and also having regard to the parties’ oral evidence as well as evidence from third parties, that the applicant’s father has passed away. Should the applicant meet other criteria for visa grant, the Tribunal would recommend that verification of the death certificate be conducted in the future. The Tribunal notes that PIC 4020 would be applicable in this case.  

12. On balance, the Tribunal is satisfied that the applicant’s father has passed away. There are no other ‘near relatives’. The Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is met and the other requirements of r. 1.15 are met. The Tribunal is satisfied that the applicant is the remaining relative of an Australian Relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.

    Conclusion

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

14. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cl.835.212 of Schedule 2 to the Regulations; and

    ·cl. 835.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member