Saeidi (Migration)

[2021] AATA 95

Saeidi (Migration) [2021] AATA 95 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hooman Saeidi

CASE NUMBER:  1804536

DIBP REFERENCE(S):  CLF2017/43152

MEMBER:Christine Kannis

DATE:22 January 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cl.835.212 of Schedule 2 to the Regulations

·cl 835.221 of Schedule 2 to the Regulations

·Public Interest Criterion 4020 for the purposes of cl.835.223 of Schedule 2 to the Regulations

Statement made on 22 January 2021 at 6:06am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – no near relatives except those that are usually resident in Australia – applicant’s mother arrived in Australia on permanent visa one month earlier – physical presence and intention – mother’s step to establish residence in Australia and returns to home country to care for ailing parent – bogus document or false or misleading information in previous visa application – hours worked in second job – second job not declared in earlier visa application – informal job with no documentation – integrity checks unable to verify claims – frank and forthright oral evidence – evidence from employer/author of reference – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 378
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(c), Schedule 2, cls 835.212, 835.221, 835.223, Schedule 4, criterion 4020(1)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hafza v Director General of Social Security (1985) 6 FCR 444; [1985] FCA 164
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; (2003) 129 FCR 259
Trivedi v MIBP [2014] FCAFC 42

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 February 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 June 2017. 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 applicant is 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 and cl.835.223

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied that the applicant is the remaining relative within the meaning of r.1.15. The delegate was also not satisfied that the applicant met Public Interest Criterion (PIC) 4020 as required by cl.835.223.

4. The applicant appeared before the Tribunal by video on 11 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, Ms Ashruf Siroos and from Mr Ahmad Shabazi by telephone from Iran. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   PROCEDURAL MATTERS

   Section 376 certificate

7. The Departmental file contains a s.376 certificate dated 7 March 2018. The Tribunal explained that the effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate. The Tribunal informed the applicant that the Department had issued the certificate on the basis that disclosure of the folios specified would be contrary to public interest.  The Tribunal informed the applicant that it had found the certificate to be valid. The Tribunal noted that the reasons disclosure would be contrary to public interest were stated to be because disclosure would reveal the sponsor’s international travel movements – privacy reasons; the information related to internal Department visa processing and integrity checking procedures and disclosure would identify a Departmental Integrity Officer - security reasons. The Tribunal invited the applicant and his representative to comment on the validity of the certificate. They made no comment.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The first issue in this case is whether the applicant, at the time of application, was the remaining relative (as defined), of an Australian relative. The second issue is whether the applicant satisfies PIC 4020.

9. Prior to the hearing the applicant’s representative provided the Tribunal with a written submission and other documentation which included but was not limited to a Residential Tenancy Agreement, Movement Details, a bank statement and Medicare correspondence.

10. The visa application was made on the basis that the applicant is the remaining relative of Sholeh Saeidi, 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).

11. In this case Sholeh Saeidi is the applicant’s sister and is an Australian citizen and therefore is an Australian relative for these purposes.

    Is the applicant a remaining relative of an Australian relative?

12. 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.

13. 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’.

14. 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.

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

15. 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)

16. The evidence before the Tribunal demonstrates that the applicant’s sister is also an Australian Citizen who is usually resident in Australia and therefore, r.1.15(1)(b) is met.

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

17. 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. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and includes a parent.

18. In this case the delegate was not satisfied that the applicant’s mother, Ms Ashraf Siroos, was usually resident in Australia at the time of application because at that time she had arrived in Australia only 32 days earlier.

19. Ms Siroos was granted a permanent resident visa (Contributory Parent – Subclass 143) on 8 November 2016 and made her initial entry to Australia on that visa on 13 May 2017. The applicant lodged this application on 14 June 2017.

20. The expression ‘usually resident’ is not defined in the Act or the Regulations. The notion conveyed by the expression ‘usually resident’ is of a place where, in the ordinary course of a person's life, he or she regularly or customarily lives. Whether a person is usually resident in a given country is a question of fact and degree and the key considerations relate to physical residency and intention.[1] 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 ; 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]. In Hafza v Director General of Social Security[2] Justice Wilcox held that the concept of residence includes two elements: ‘physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily for ever.’

    [1] Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259 at 265.

    [2] Hafza v Director General of Social Security (1985) 6 FCR 444; [1985] FCA 164.

21. The evidence before the Tribunal was that Ms Siroos arrived in Australia on 13 May 2017 as the holder of a permanent visa. In the weeks following her arrival she opened a bank account with NAB, she applied for inclusion in Medicare and inspected properties eventually entering a lease on 24 June 2017. Ms Siroos has departed Australia on three occasions since 13 May 2017, each time returning to where her daughter and son currently reside. Ms Siroos told the Tribunal that the reason she departed in 2018 and in 2019 was to care for her mother in Iran. Her mother had Alzheimer’s disease and has since passed away.  Ms Siroos has siblings in Iran however she is a widow and the applicant and the sponsor are her only children.  Ms Siroos told the Tribunal that she owns a house in Iran however currently the and in recent years the market has not been good and the proceeds of a sale would not enable her to purchase a house in Australia. She said it is definitely her intention to sell her home in Iran as soon as the property market improves.

22. In this case, at the time of application, Ms Siroos was physically present in Australia and the evidence supports a finding that she intended to reside in Australia on a permanent basis. The Tribunal acknowledges the short period of time Ms Siroos was in Australia at the time of application however this is outweighed by the evidence of her physical presence and in particular, her intention. The Tribunal is satisfied, on balance, that Ms Siroos had been usually resident in Australia at the time of application and the time of this decision.  

23. The Tribunal is satisfied there are no near relatives other than those permitted by the regulations and therefore r.1.15(1)(c) is met. 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.835.212 and cl.835.221.

    Public Interest Criterion 4020

24. The next issue in this review is whether the visa applicant meets PIC 4020 as required by cl. 835.223 for the grant of the visa. Broadly speaking this requires that:

    ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl.4020(1); and

    ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2B) and (2BA).

25. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act. In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

26. Under s. 5(1) of the Act, a bogus document is one that the Minister reasonably suspects:

    ·purports to have been, but was not, issued in respect of the person; or

    ·is counterfeit or has been altered by a person who does not have authority to do so; or

    ·was obtained because of a false or misleading statement, whether or not made knowingly.

27. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

28. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

29. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).

    The delegate’s decision

30. The delegate decided that the applicant provided false or misleading information when he indicated in a Subclass 457 visa application that he worked at least 44 hours a week at Majlesiye Novin between 2010 and 2014. The bogus document was a reference provided in relation to that work. In making these decisions the delegate noted:

    ·In a Subclass 457 visa application, the applicant claimed that from February 2010 to September 2014 he was employed as a cook by a catering company in Tehran called Majlesiye Novin. In a statement provided to the Department on 10 May 2015, he claimed this was a second job to supplement the income from his full-time employment as an Industrial Engineer. He said he was unable to provide any evidence of his employment as a cook.

    ·Integrity checks of the applicant’s claimed work experience and the documents he supplied to William Angliss Institute to support his Skilled Migration Assessment were made. It was found that, notwithstanding his claims to the Department that he was unable to provide any evidence of his employment with Majlesiye Novin, he provided William Angliss Institute with a reference dated 28 September 2015 from this business. The reference stated that the applicant worked 44 hours per week as a cook between February 2010 to September 2014.

    ·The reference was referred to the Department’s office in Tehran for further integrity checks. That office reported serious concerns about the applicant’s employment as a cook and the genuineness of the reference from Majlesiye Novin for the following reasons:

    oThey had been unable to contact the claimed author of the reference.

    oThe employment history the applicant provided to the Department in an unsuccessful student visa application in July 2010 made no reference to his employment as a cook.

    oIntegrity checks confirmed the applicant was employed on a full-time basis as an industrial engineer with Iran Khodro Company, working 44 hours per week receiving a “reasonably good income”.

    oThe credibility of the applicant being required to supplement his income and working a further 44 hours per week in a catering company in East Tehran located some 50 kilometres from his home and work in West Tehran was very low.

    ·On 13 December 2017, the delegate sent the applicant an Invitation to comment on the Department’s assessment that the information he had supplied about his work experience to support his Subclass 457 visa application was false and misleading and the reference from Majlesiye Novin was a bogus document.

    ·On 10 January 2018, the applicant’s sponsor/ former migration agent wrote the following in an email to the Department:

    “The reason that the applicant did not provide his work experience as a cook is that at the time he didn’t think it is necessary to provide it for his student visa. Also, he did not have any official record of his work experience as a cook. As he clearly explained in a declaration provided to DHA in May 2015, his work experience as a cook was a secondary job and he was working as an engineer on his primary job.
    I believe not only the applicant never attempt to provide misleading information, but also he was clear on his work experiences both as a cook and as an engineer. Please refer again to the declaration provided by the applicant in 2015 that he explained he officially worked as an
    engineer (attached to this email for your convenience).
    Regarding the reference letter provided to the assessing body, the manager/owner of Majlesi Novin at the time is available to confirm it and provide more information.”

    Evidence provided prior to the hearing

31. In the written submission provided prior to the hearing the applicant’s representative provided the following information:

    ·The applicant graduated with a Bachelor of Industrial Engineering in February 2005. In June 2005, he began working as a Contractual Supervising and Planning Expert at Arshad Pakan (which was based in the Iran Khodro factory). He continued working there until February 2006 when his employment transferred from Arshad Pakan to work directly for Iran Khodro.

    ·In February 2010 the applicant took on a second job and commenced working as a cook at a restaurant named Majlesiye Novin. The primary focus of the business was catering. He worked there until September 2014.  This second job was in the informal economy and as such, he received no payslips and paid no tax with this job.  

    ·During his time at Majlesiye Novin the applicant worked approximately 44 hours per week. Generally, he would work evening shifts (after completing his work at Iran Khodro) on Saturdays, Sundays, Mondays, Tuesdays and Wednesdays. During the weekend days in Iran (Thursdays and Fridays) he would work much longer shifts as he was not needed at Iran Khodro. His first job (Iran Khodro) and second job (Majlesiye Novin) were located approximately 31 km apart.  On the Iranian weekdays (Saturday to Wednesday), he would work at Iran Khodro from 8:00 am to 4:00 pm, then travel on a company bus to his second job at Majlesiye Novin where he would work from approximately 5:30 pm or 6:00 pm (depending on traffic) until approximately 10:00 pm, without a break. On the Iranian weekend days (Thursday and Friday), he would work longer shifts at Majlesiye Novin starting at 10:00am and finishing at 10:00 pm.

    ·In June 2010, after the applicant had been working at Majlesiye Novin for a few months, he decided to sit exams for Cook Skilled Worker Grades 2 and 1 Certificates with a Technical and Vocational Training Organisation in Iran. 

    ·On 2 July 2010, the applicant lodged an application for a student Subclass 573 visa to undertake a Master of Engineering Management at Curtin University in Western Australia. As part of his visa application, he only provided details of his formal work experience which was relevant to his proposed course of study. The visa was refused because the delegate was not satisfied he had sufficient funds to support himself during his proposed stay in Australia.

    ·On 23 March 2015, the applicant lodged an application for a Subclass 457 visa.  As part of the visa process, the applicant’s position was nominated by Zafari Pty Ltd – an Australian business (a café) owned by his Australian citizen sister and her husband.

    ·On 21 April 2015, the Department requested the applicant provide specific documents relating to his previous employment. He was requested to provide evidence of work experience in his nominated occupation, or a closely related occupation. He was advised the evidence could include certified copies of work references for any positions held during the relevant period, contracts, pay slips, tax returns, group certificates and superannuation information.

    ·On 10 May 2015, the applicant provided a letter to the Department explaining that he could not provide the specific evidence requested, namely an employment reference letter on official letterhead, a contract, a payslip, a tax return, a group certificate or superannuation information. He said his work experience as a cook was his second job and he had to work as a cook after hours to provide extra income because the salary payments from a single job in Iran are not usually enough to cover the expenses of a family. He advised that since he had been employed by a company in Iran as an engineer (as his primary job), he was not able to provide any official reference to the places he had worked as a cook in Iran because all social security payments and superannuation were paid by the primary employer and there was no compelling reason for him to officially pay them for the second job.

    ·On 5 January 2016, the applicant provided the Department with a document issued by the William Angliss Institute titled ‘Skilled Migration Assessment Result’. As part of the assessment the applicant provided a letter from a former supervising colleague, Mr Shabazi, at Majlesiye Novin dated 28 September 2015.  In preparing this employment reference letter for Mr Shabazi’s review and signature, the applicant and his migration agent relied on the employment reference letter template preferred by skilling assessing bodies at the time.

    ·The delegate’s reasons for finding the applicant’s claim that he worked at least 44 hours a week at Majlesiye Novin between 2010 and 2014 was false or misleading information were a paraphrasing of advice from the staff member at the Australian Embassy in Tehran  which advised that in 2018 she was ‘unable to verify the contents of the 2015 employment letter’ by telephone and the information regarding his employment was, at most, a ‘serious concern’.

    The hearing

1. The delegate decided that the information provided by the applicant in his Subclass 457 Skilled visa application that he worked 44 hours per week at Majlesiye Novin was false and misleading information. The delegate also decided the work reference the applicant provided to William Angliss Institute is a bogus document.  

2. The applicant told the Tribunal that in February 2010 he commenced working a second job at Majlesiye Novin because he needed additional income. He said he was helping pay for his sister’s university fees in Australia. He said he was hoping to travel to Australia on a student visa for which he would need to demonstrate that he had sufficient funds. The Tribunal notes that his Subclass 573 visa application was refused because he did not have sufficient funds. The applicant said he was also trying to save money to pay for his mother’s visa application. The Tribunal referred the applicant to the information he provided to the Department that his salary from one job was not sufficient to pay his living expenses in Iran. In response he told the Tribunal that if he had remained in Iran he would probably have been able to support himself with his Iran Khodro salary however this was not his intention and therefore he worked a second job.

3. The applicant told the Tribunal that he did not include his work as a cook in his student visa application because he did not think it was relevant to his proposed study. He said he has applied for many engineering positions in Australia and has not included his experience as a cook because a prospective employer would not consider it to be relevant. The Tribunal accepts this explanation.

4. The applicant gave his oral evidence in a frank and forthright manner. The Tribunal accepts his evidence that he worked a second job at Majlesiye Novin for 44 hours week from February 2010 to September 2014 and accepts his reasons for wanting to earn additional income.

5. The Tribunal spoke to the author of the work reference. The Tribunal contacted Mr Shabazi on the telephone number listed on the work reference. Mr Shabazi told the Tribunal that he was the manager of Majlesiye Novin. He confirmed the information provided in the work reference and said that he provided the information on the basis of his personal knowledge of the applicant’s working hours, which he said included working weekday evenings. The Tribunal accepts Mr Shabazi’s evidence.

6. To meet the definition of bogus document, there need only be a reasonable suspicion of a document being bogus, not probative evidence. The Tribunal has considered the reference and the oral evidence provided at hearing and accords significant weight to Mr Shabazi’s evidence.  The Tribunal is not satisfied that the evidence establishes that the reference is a bogus document as defined in s.5(1) of the Act.  Accordingly, the Tribunal finds that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document.  

7. Therefore, the applicant meets PIC 4020(1).  

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

8. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). 

9. There is no evidence before the Tribunal that the applicant or a member of his family unit were refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three years before the application.

10. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

11. There is no evidence before the Tribunal to suggest that there is an issue with the identity of the applicant.  His passport and Identity Card have been provided to the Department. For these reasons the Tribunal is satisfied the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

12. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

13. There is no evidence the applicant or any member of the family unit (as defined in r.1.12 of the Regulations) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

14. Therefore PIC 4020(2B) is met.

15. For the above reasons, the Tribunal finds that applicant meets the requirements of PIC 4020 for the purposes of cl.835.223.

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

17. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cl.835.212 of Schedule 2 to the Regulations

    ·cl 835.221 of Schedule 2 to the Regulations

    ·Public Interest Criterion 4020 for the purposes of cl.835.223 of Schedule 2 to the Regulations

    Christine Kannis
    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).