Naude (Migration)

[2020] AATA 4506

Naude (Migration) [2020] AATA 4506 (10 August 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pieter Naude

CASE NUMBER:  1829439

DIBP REFERENCE(S):  CLF2017/122885

MEMBER:Kira Raif

DATE:10 August 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 10 August 2020 at 1:29pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – near relative – review applicant overseas whereabouts unknown for applicant’s sister – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 835.212, 115.221; r 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 25 September 2018 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 25 September 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 his Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by telephone on 11 June 2020 to give evidence and present arguments. 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).

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. 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?

6. The visa application was made on the basis that the applicant is the remaining relative of his sister, 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: 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). In this case, the sponsor is the applicant’s sister and evidence of her Australian citizenship has been provided. She is therefore an Australian relative for these purposes.

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated on the application form that his parents and two siblings reside in Australia and are Australian citizens or permanent residents. However, he also listed a sibling in the USA.

8. In his written submission to the Tribunal the applicant states that he has not had any contact with this sister in the USA for over 20 years and her whereabouts are unknown. The applicant states that she may live in the US or she may live in any other country including Australia.

9. In oral evidence to the Tribunal the applicant confirmed that his parents live in Australia and he is looking after them. His sister and brother reside in Australia. The applicant said that he has another sister, but she has broken contact with the family about 30 years ago and since that time they had no contact with that sister. He does not know whether she is alive or where she lives.

10. The Tribunal acknowledges, and is prepared to accept, the applicant’s evidence, that he has not had any contact with this sibling for many years. The Tribunal is also prepared to accept that the applicant was unaware of his sister’s whereabouts when making the application. However, the Regulations are not concerned with the nature of the familial relationship. If the applicant does have a sibling who is not an Australian citizen or permanent resident, then this relative would disqualify the applicant from meeting the definition of ‘remaining relative’.

11. On 10 August 2020 the applicant provided a further submission to the Tribunal, stating that he has been able to locate his sister who now lives in the US. The Tribunal finds that the applicant’s sister is his near relative. She is not resident in Australia and she is not an Australian citizen or permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied that the applicant has no near relatives other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens. He does not meet the definition of ‘remaining relative’.

12. 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 the time of decision, for the purposes of cl.835.212 and cl.835.221.

13. The applicant submits that he has given up his ties in his home country when he moved to Australia. The Tribunal accepts that this may be the case but has no discretion to grant the visa on compassionate grounds.

14. The applicant was born in 1963 and is not old enough to be granted an aged pension. He is not entitled to the grant of an Aged Dependent Relative visa.

15. The applicant claims in his written submission to the Tribunal that he assists his father in caring for his elderly mother as the other relatives are not able to do that. However, there is no evidence before the Tribunal that when the application was made, it was accompanied by satisfactory evidence that the relevant Carer certificate had been sought or obtained. As such, the Tribunal finds that the applicant has not made a valid application for a Carer visa. It is also not apparent that the applicant claimed to be a carer when the application was made and the Tribunal is not satisfied he meets cl. 836.212. The Tribunal is not satisfied the applicant is entitled to the grant of a Carer visa.

    Conclusion

16. 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

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

    Kira Raif
    Senior Member