Polis (Migration)

[2018] AATA 706

Polis (Migration) [2018] AATA 706 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jinan Gorgies Polis

VISA APPLICANTS:  Mr Jan Poles
Mrs Moren Shlemon Danyal
Miss Athena Jan Gorgees
Master Angelos Poles

CASE NUMBER:  1609162

DIBP REFERENCE(S):  OSF2014/071275

MEMBER:Nicholas McGowan

DATE:March 14, 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for an Other Family (Migrant) (Class BO) visas for reconsideration (including the secondary applicants), with the direction that the first named applicant meets the following criteria for a Subclass 115 (Remaining Relative) visa:

· cl.115.211 of Schedule 2 to the Regulations, and;

· cl.115.221 of Schedule 2 to the Regulations.



Statement made 14 March 2018 at 12:15pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – Whether applicant is the remaining relative of an Australian Relative – Consistent evidence provided to the Department and the Tribunal – Applicant is the remaining relative of an Australian Relative

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 115.211, 115.221

REVIEW of refusal to grant Other Family (Migrant)(Class BO) Remaining Relative 115 visas

1. The visa applicants applied for the 115 visas on 11 December 2014. 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 review applicant appeared before the Tribunal in a public hearing held in Sydney.

   Is the applicant a remaining relative of an Australian relative?

2. The visa application was made on the basis that the first named applicant is the remaining relative of, the review applicant. Having regards to the evidence in the Department’s file, the Tribunal is satisfied that the first named applicant is the son of the review applicant, who is an Australian Citizen. The Tribunal is also satisfied that, based on the review applicant’s oral evidence at hearing, he is usually resident in Australia: as per: r.1.15(1)(b). The Tribunal is satisfied from all the evidence that the review applicant is the father, and therefore, a relative of the first named applicant: r.1.15(1)(a). Therefore, r.1.15(1)(a), and, r.1.15(1)(b), are met.

   Does the applicant have any other ‘near relatives’ except those eligible citizens?

3. The Tribunal accepts the first named applicant’s oral evidence that his wife’s father died while serving the Iraqi defence forces, as all the oral evidence in this regard to both the Department and Tribunal has been consistent. In regards to the wife’s mother, and their claim that she is missing, presumed deceased, the Tribunal has ultimately accepted the claim at face value. Ordinarily, this would not be the case. However, in the unique circumstances of this case it notes the efforts the sponsor has himself undertaken to locate and verify the claimed death of the applicant’s mother-in-law. The Tribunal is also mindful of the events which occurred in Mosul while under the control of Islamic state. In addition, the Tribunal is cognisant of its obligation to provide a fair, quick and informal review mechanism to those who appeal refusal decisions. In this regard, at the completion of the public hearing held into this matter, the Tribunal sought certain information from the department under the power accorded to the Tribunal under the Act. The Tribunal’s requests of the Department were not fulfilled. On the evidence before the Tribunal, and in the circumstances this family find themselves and now claim, the Tribunal has accepted the applicant’s claims in regards to the death of his mother-in-law as claimed.

4. For the above reasons, the Tribunal is satisfied that the applicant has no other ‘near relatives’ other than those detailed to the Department previously. Therefore, r.1.15(1)(c) is met. The requirement in Regulation 1.15(1)(d), does not apply in this case.

5. For the reasons set out above, 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.115.211 and cl.115.221.

6. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 115 visa.

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