Ram (Migration)

[2018] AATA 78

Ram (Migration) [2018] AATA 78 (9 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alvin Vikash Ram
Mrs Karishma Ram
Master Jai Ram

CASE NUMBER:  1621497

DIBP REFERENCE(S):  CLF2016/41990

MEMBER:Moira Brophy

DATE:9 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 09 January 2018 at 2:08pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – Primary applicant’s siblings and parents are in Australia – Members of his wife’s family live in Fiji – Wife has no contact with her parents and sister

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 1.15(1)(a)- (c) ,1.15(2) Schedule 2 cls 835.212, 835.221, 835.321

CASES
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116

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 29 November 2016 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 11 July 2016. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicants are 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.

3. The delegate refused to grant the visas on the basis that cl.835.212 was not met because the delegate found the visa applicant was not the remaining relative of an Australian citizen because members of his wife’s family were living in Fiji.

4. The applicants, Mr Alvin Vikash Ram and Mrs Karishma Ram with their son Master Jai Ram appeared before the Tribunal on 5 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Premilla Devi Ram.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the applicant, Mr Alvin Vikash Ram is the remaining relative of Ms Premila Devi Ram who the 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).

8. In this case Ms Premila Devi Ram is the applicant’s sister and an Australian citizen and therefore is an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

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

10. 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’.

11. 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. Additional provisions apply if the applicant is an adopted child.

    The requirement to be a parent or sibling: r.1.15(1)(a)

12. The Tribunal finds Ms Premila Devi Ram is a sister, of the applicant. As the Australian relative in this case is the sister of the applicant, r.1.15(1)(a) is met.

    Whether the Australian relative is usually resident in Australia: r.1.15(1)(b)

13. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’ for the purpose of r.1.15: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17]. Scargill also confirms that the test for usual residence in r.1.15 can extend to the circumstances of a person living lawfully in Australia on a temporary visa.

14. The Tribunal is satisfied from the oral evidence given at the time of hearing Ms Premila Devi Ram resides at Hoxton Park in a home she and her husband are currently purchasing and that is her primary place of residence. As the Australian relative is usually resident in Australia, r.1.15(1)(b) is met.

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

15. Regulation 1.15(1)(c) requires that the applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

16. ‘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.

17. At the time of hearing the applicant told the Tribunal that his parents were resident in Australia and had been since they came on contributory parent visa is in 2009. His only brother had been in Australia since 1998 and he was sponsored to Australia by his partner. The applicant said that his sister had married an Australian and was sponsored to come to Australia in 1991 and she has resided here since that time. The applicant said that he did not have any other siblings and his only other family were his partner and child who were listed as secondary applicants on his application.

18. Ms Karishma Ram, the partner of the applicant told the Tribunal that she and the applicant had married in Fiji in 2005. When asked about her family she said that her parents had separated and that she had been looked after by her auntie from the time she was six years old. She said she had not had contact with either of her parents since that time. When it was put to her that at on the application she had listed her father as deceased she said she had been told that by a member of his family. When asked about her sister she said that as her sister lived in Fiji but she did not have contact with her as her sister had been raised by their mother. When her mother had left her she had taken her sister with her. When asked if she had tried to find her family she said that she had not and they had not tried to find her either. When asked who was the witness to the marriage of her and the applicant she said her witness had been her maternal aunt. That was not the aunt she had been raised by.

19. While the Tribunal appreciated Ms Ram may not have contact with her father, her mother and her sister the test is not whether there is contact but whether they fall within the meaning of 1.15(2).

20. The Tribunal finds that parents and siblings are 'near relatives' within the meaning of r. 1.15(2). There is no evidence before the Tribunal that Ms Ram’s relatives are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens. The Tribunal is not satisfied that the applicant and the applicant's partner have no near relatives other than those who are usually resident in Australia and are Australian citizens, permanent residents or eligible NZ citizens. The Tribunal is not satisfied the applicant meets paragraph 1.15(1)(c) of the definition of 'remaining relative'. The applicant does not meet cl. 835.212 and the other applicants do not meet cl. 835.321.

21. There is no evidence before the Tribunal to indicate that the applicant meets the criteria for the grant of the Aged Dependent Relative and Carer visas. In particular, the applicant is not old enough to be granted an age pension under the Social Security Act 1991. He therefore does not meet the definition of the term 'aged dependent relative' in r. 1.03. The applicant claims to provide care to his father. The Tribunal was provided with medical evidence to support the oral evidence that the father of the applicant has ischaemic heart disease, complicated by a stroke he had in 2016 and diabetes. While the Tribunal accepts the applicant provides care to his father the Tribunal was not provided the relevant Certificate to meet the requirements for the grant of the Carer visa.

22. 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.

23. 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 or at the time of decision for the purposes of cl.835.212 and cl.835.221.

24. 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

25. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Moira Brophy
    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).