Ncube (Migration)

[2017] AATA 1624

Ncube (Migration) [2017] AATA 1624 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Odettie Ncube

VISA APPLICANTS:  Miss Nyaradzo Machube
Miss Chirinma Tanatswa Ashley

CASE NUMBER:  1605752

DIBP REFERENCE(S):  F2015/046256

MEMBER:Kira Raif

DATE:18 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2017 at 4:16pm

CATCHWORDS

Migration – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – Remaining relative of an Australian relative – Father and brother in Zimbabwe at date of application – Father deceased since application – Claim of child no contact with brother

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 1, Schedule 2, cl 115.211, cl 115.221, cl 115.321, r 1.03, 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 17 March 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (‘the visa applicant’) is a national of Zimbabwe, born in October 1981. She applied for the visa on 19 August 2015. The application includes her child. The visa applicant was sponsored by her sister. The delegate refused to grant the visas on the basis that cl.115.211 was not met because the delegate was not satisfied that the visa applicant was the remaining relative of her Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal by teleconference on 18 September 2017 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 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 (the Regulations). In the present case, the visa applicants are 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.

5. The visa application was made on the basis that the visa applicant is the remaining relative of her sister, 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: 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).

6. 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 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 visa applicant and is ‘usually resident in Australia’.

7. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

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

8. The review applicant provided to the Tribunal a copy of the primary decision. It indicates that the visa applicant stated on the application form that her mother and two siblings were deceased, but her father and another sibling reside in Zimbabwe. On the basis of that information, the delegate found that the visa applicant had near relatives who were not Australian residents.

9. In her written statement to the Tribunal the review applicant explained that she has been taking care of her sister and the child for many years and that they would not be a burden to Australia because the visa applicant is educated. The review applicant claims their brother has not had contact with the family. The review applicant also told the Tribunal in oral evidence that this brother had no contact with the family for a long time and that their father had been ill when the application was made and has since passed away. The review applicant provided to the Tribunal a copy of the death certificate relating to their father. The death certificate indicates that the father passed away in July 2017. That evidence indicates that he was alive at the time the application was made in August 2015.

10. There is no evidence that at the time the application was made, the visa applicant’s father and brother were resident in Australia or that they were Australian citizens or permanent residents or eligible New Zealand citizens. The Tribunal finds that the visa applicant’s brother and father were ‘near relatives’. This is so even if there was no contact between the visa applicant and her father and brother. The definition of the term ‘near relative’ does not permit consideration of the nature of contact between near relatives.

11. The Tribunal finds that at the time when the application was made, the visa applicant had ‘near relatives’ within the meaning of r. 1.15(2). She does not meet r.1.15(1)(c) and cl. 115.211. At the time of this decision, the visa applicant does not meet the requirements of cl. 115.221 because her brother is a near relative. The second named applicant does not meet cl. 115.321 and there is no evidence that he meets the primary criteria for visa grant.

12. There is no evidence that the visa applicant is a carer of an Australian relative, there is no relevant Carer certificate, and she is not old enough to be granted the Aged Dependent Relative visa. The Tribunal is not satisfied the visa applicant meets the requirements for the grant of the Carer visa or an Aged Dependent Relative visa.

    Conclusion

13. 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 the visa sought.

    Decision

14. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Kira Raif
    Senior Member