Nahas (Migration)

[2017] AATA 2353

Nahas (Migration) [2017] AATA 2353 (16 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Farida Mohamed Nahas Elias Antoun Nahas

CASE NUMBER:  1613755

DIBP REFERENCE(S):  CLF2016/32242

MEMBER:Kira Raif

DATE:16 November 2017

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 16 November 2017 at 4:45pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Son in Australia on a temporary skilled visa – Near relative is not an Australian permanent resident –Requested Ministerial intervention

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, rr 1.15, 1.15(1)(c), 1.15(2), Schedule 2 cls 835.212, 835.221

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 11 August 2016 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 is a national of Egypt, born in July 1943. She applied for the visa on 26 May 2016. 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 on 16 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son and nephew. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. 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.

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’. 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.

   Is the applicant a remaining relative of an Australian relative?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored in this application by her sister. The applicant stated in the application that her parents and two siblings were deceased and that her sister and son were resident in Australia.

8. According to the information in the primary decision record, the applicant’s son Moatassem Mohamed Mahmoud was residing in Australia as a holder of a Temporary Skilled Class SP visa and the applicant confirmed this information in her oral evidence to the Tribunal. The Tribunal is not satisfied that at the time of the application, the applicant’s son was an Australian citizen, an Australian permanent resident or an eligible citizen. The Tribunal finds that an adult non-dependent child is a ‘near relative’ within the meaning of r. 1.15(2) and for the purpose of r. 1.15(1)(c).

9. The applicant’s oral evidence to the Tribunal is that when her son made the application for the visa, the situation in Egypt was not very good. He was the one taking care of her and her sister who has been living in Australia for a long time, asked her son to bring her to Australia to care for her here. The Tribunal acknowledges that evidence but has no discretion to grant the visa on compassionate or humanitarian grounds.

10. The Tribunal finds that the applicant had a near relative who was not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The applicant did not meet r. 1.15(1)(c) and r. 1.15 at the time the application was made. The applicant is not a remaining relative of the sponsor and does not meet cl. 835.212.

11. The applicant also informed the Tribunal that the sponsor has passed away so that the applicant may not continue to meet the sponsorship requirements at the time of this decision.

12. There is no evidence that the applicant is a carer of an Australian relative and there is no evidence of her dependence upon the sponsor for the purpose of the Aged Dependent Relative visa. The applicant’s evidence to the Tribunal is that she has been financially dependent on her son and not on her sister. The Tribunal is not satisfied she is an Aged Dependent Relative of an Australian relative.

13. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the request and has considered there are compassionate circumstances affecting the applicant and her son, who is a permanent resident. The Tribunal accepts that the applicant is an elderly person with a disability and that she is dependent on the sponsor physically and financially. Her evidence is that she has nothing to go back to. Although she did not meet the requirements for visa grant when the application was made, she appears to meet the requirements at present. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    Conclusion

14. 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

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

    Kira Raif
    Senior Member