Ranathunga Arachchige (Migration)

[2017] AATA 2844

Ranathunga Arachchige (Migration) [2017] AATA 2844 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Inoka Shymanie Ranathunga Ranathunga Arachchige

VISA APPLICANTS:  Mr Uditha Menaka Ranathunga Ranathunga Arachchige
Mrs Rasikapriyadarshani Sarathchandra
Miss Hesanya Hirusari Ranathunga Arachchige
Miss Chenuthi Chamathna Ranathunga Arachchige

CASE NUMBER:  1719186

DIBP REFERENCE(S):  2017053312

MEMBER:A B Baker

DATE:13 December 2017

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 13 December 2017 at 4:48pm

CATCHWORDS

Migration – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – Remaining relative of an Australian relative – Parents and brother in Sri Lanka at date of application – Applicants estranged from near relatives – Disapproval of marriage

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 1 Item 1123A, Schedule 2 cl 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 27 June 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 visas on 23 May 2017. 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 primary visa applicant is not the last remaining relative of the review applicant. The primary visa applicant and his spouse each has near relatives living out of Australia who are not Australian permanent residents or Australian citizens.

4. The review applicant appeared before the Tribunal on 13 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant via telephone.

5. The Tribunal was assisted by an interpreter in the Singhalese and English languages. The parties were not represented in relation to this review.

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

   BACKGROUND

7. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

8. The primary visa applicant is a citizen of Sri Lanka born on 5 January 1974 (43 years old). His wife and two children are also included in the application as his dependents.

9. The primary visa applicant’s parents and a brother reside in Sri Lanka. His sister, the review applicant is an Australian permanent resident.

10. The primary visa applicant’s wife also has near relatives, her mother and a sister, residing in Sri Lanka.

11. The primary visa applicant claims that neither he nor his wife has any contact with any of their relatives because they disapproved of their marriage.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The visa application was made on the basis that the visa applicant is the remaining relative of Ms Inoka Shyamanie Ranathunga Arachchige 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).

13. In this case Ms Inoka Shyamanie Ranathunga Arachchige is the visa applicant’s sister. She first arrived in Australia in August 2012 and acquired permanent residence on 2 February 2015. She is married and has two children also resident in Australia. Ms Inoka Shyamanie Ranathunga Arachchige therefore is an Australian relative for these purposes.

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

14. 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.

15. 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’.

16. 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)

17. 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.

18. ‘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.

19. In the present case the primary visa applicant has declared that both his parents and a brother reside in Sri Lanka. The primary visa applicant’s wife also has a parent and a sibling who are resident in Sri Lanka. Both applicants claim that they do not have any contact with any of their relatives as both families disapproved of their marriage. The primary visa applicant told the Tribunal that he and his wife and children had been isolated by their respective families and their community, not just because they disapproved of their marriage but because their youngest child was born with Downs Syndrome. He said he had to resign his commission in the defence force and move with his family to another place.

20. The review applicant told the Tribunal that the primary visa applicant and his wife and children were all alone in Sri Lanka with no-one to support them. She said that they were isolated and the children had no-one to play with. She told the Tribunal that she and her family wanted them to come to Australia where they could all support each other.

21. The Tribunal confirmed with the applicants that the family members the primary visa applicant declared in his application were still living, resident in Sri Lanka and were not Australian permanent residents or Australian citizens. The Tribunal put to the parties that as such, the primary visa applicant did not meet the definition of last remaining relative. The Tribunal put to the parties that the Migration Act did not allow the Tribunal to consider the qualitative nature of his relationship with his near relatives in Sri Lanka, just that they were, according to the definition, near relatives and that they were living and not Australian residents or citizens The parties acknowledged that they understood the law but wanted, nevertheless to put their case to the Tribunal.

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 primary visa 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.115.211 and cl.115.221.

    CONCLUSION

24. For the reasons above, the primary visa applicant does not meet the criteria for a Subclass 115 visa.

25. The Tribunal has considered whether the primary visa applicant would meet the relevant criteria for Aged Dependent Relative (Subclass 114) or Carer (Subclass 116) and there is no material which would permit a finding that the primary visa applicant meets prescribed criteria for either of those visas.

26. As the primary visa applicant does not meet the criteria for the grant of the visa it follows that the secondary applicants also do not meet the criteria for the grant of visas.

    DECISION

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

    A B Baker
    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).