Novis (Migration)

[2019] AATA 1930

Novis (Migration) [2019] AATA 1930 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Anelita Novis

VISA APPLICANTS:  Mrs Maria Paz Villareal
Mr Michael Villareal
Master Karl Miguel Villareal
Miss Maria Mikylla Villareal

CASE NUMBER:  1724074

DIBP REFERENCE(S):  OSF2016043854

MEMBER:Ann Duffield

DATE:14 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 14 February 2019 at 12:04pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) – Subclass 115 (Remaining Relative) – applicant must be a remaining relative at time of application – must have no near relatives – not satisfied there are no near relatives – visa applicant does not meet criteria – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1 Item 1123A, Schedule 2 Part 115, cls 115.211, 115.221, 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 2 August 2017 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 visa applicants applied for the visa on 5 February 2016. 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 (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. Relevantly to this matter, the primary criteria to be met include cl.115.211

3. The delegate refused to grant the visas on the basis that cl.115.211 was not met because the applicant has several near relatives who are not Australian citizens, permanent residents or eligible New Zealand citizens usually resident in Australia. The applicant indicated that her spouse’s mother and two siblings currently reside in the Philippines.

4. The review applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her sister.

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

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.

7. The primary visa applicant is a citizen of the Philippines born on 4 August 1969 (49 years old). Her husband and two children are included on the application.

8. The parties applied for the visa on 5 February 2016.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The visa application was made on the basis that the visa applicant is the remaining relative of Miss Anelita Novis 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).

10. In this case, Ms Novis is the visa applicant’s sister and an Australian citizen and therefore is an Australian relative for these purposes.

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

11. 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, which is set out in the attachment to this decision.

12. 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’.

13. 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.

    No near relatives: r.1.15(1)(c)

14. 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.

15. ‘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.

16. Evidence before the Tribunal indicates that the applicant’s spouse, Mr Michael Villareal’s mother and two siblings reside in the Philippines. The Tribunal confirmed this with the review applicant at the hearing. It transpired from the review applicant’s evidence that there are also other near relatives of the applicant’s spouse in the Philippines. The Tribunal asked the review applicant if any of those near relatives had passed away and she affirmed that they had not.

17. The review applicant told the Tribunal that she did not consider her brother in law’s relatives as relatives for the purposes of the visa application. She said that she hoped that she would be able to have her last remaining sibling and her family in Australia. The Tribunal put to the review applicant the definition of near relatives, reminding her that this also applied to her sister’s spouse.

18. The review applicant asked if there was any way that the tribunal could exercise a discretion as the applicant did not have a close relationship with her husband’s family and that all of the members of the visa applicant’s family resided in Australia. The Tribunal explained that it had no such discretion to remove consideration of the applicant’s spouses’ near relatives.

19. For these reasons, the Tribunal is not satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is not met.

    Conclusion on cl.115.211/115.221:

20. For the reasons 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 or  the time of decision for the purposes of cl.115.211 and cl.115.221.

    CONCLUSION

21. 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

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

    Ann Duffield
    Senior 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).