Singh (Migration)

Singh (Migration) [2019] AATA 2407 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mahendra Pratap Singh
Mrs Sunita Kumari Singh
CASE NUMBER:  1728521
DIBP REFERENCE(S):  CLF2016/86578
MEMBER:Hugh Sanderson
DATE:12 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Statement made on 12 April 2019 at 7:26am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – remaining relative of an Australian relative – false and misleading information – failure to provide details of near relatives – preparation of the application by others – compelling circumstances – relatives not residing in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 835.212, 835.221, 835.223; Schedule 4 Public Interest Criteria (PIC) 4020; rr 1.03, 1.15
CASES
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 October 2017 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 7 November 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.835.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had provided false and misleading information in respect of his application and did not meet the requirements of public interest criteria (PIC) 4020.
Background
The applicants are citizens of Fiji. The application was made on the basis that the applicant meets the definition of the remaining relative of the applicant’s brother, Dharmedra Singh, who is the sponsor of the application. The second named applicant is the wife of the applicant and her application is based on her being a member of the family unit of a person who meets the primary criteria.
As part of the documentation in support of the application, the applicant was required to provide details of the identity and country of residence of all their family members and the family members of the second named applicant. In the Form 47OF provided by the applicant the only family members identified were his parents who he declared as being deceased. The applicant did not provide any details of any siblings or children of himself or details of any of the family members of the second named applicant.
The Department accessed the applicant’s application for a Subclass 600 Visitor visa which had been lodged by him on 9 June 2016. In that application, the applicant had provided details of the following members of his family:
·Father – Bhan Pratap Singh – deceased;
·Mother – Sarda Singh – deceased;
·Brother – Chandra Bhan Singh – living in Canada;
·Brother – Dharmedra Singh – living in Australia (the sponsor of the current application);
·Brother – Jitendra Singh – living in New Zealand;
·Sister – Reenal Rachna Varma – living in Australia;
·Sister – Meenal Rachna Prasad – living in Fiji; and
·Daughter – Marshneel Prakash – living in Fiji.
In support of the visitor visa application, the following details were provided as to the second named visa applicant’s family:
·Father – Suruj Prasad – deceased;
·Mother – Amika Chandler – living in Canada;
·Sister – Pushpa Chand – living in Australia;
·Brother – Manoj Lal – living in Australia;
·Sister – Sagita Kumari Singh – living in Fiji;
·Sister – Pramina Kumari Singh – living in Fiji; and
·Daughter – Marshneel Prakash – living in Fiji.
On 12 June 2017, the Department wrote to the applicant requesting he provide full details of all his family members and the family members of his wife. On 18 July 2017, the applicant responded to the request by the Department to provide full details of his and his wife’s family. In that response, he provided the following details:
·Father – Bhan Pratap Singh – deceased;
·Mother – Sarda Singh – deceased;
·Brother – Chandra Bhan Singh – place of residence not disclosed;
·Brother – Dharmedra Singh – living in Australia; and
·Brother – Jitendra Singh – living in New Zealand.
The applicant failed to disclose the identity and country of residence of two sisters and his daughter and failed to disclose the place of residence of one of his brothers.
The applicant provided details of his wife’s family as follows:
·Father – Suruj Prasad – deceased;
·Mother – Amika Chandler – living in Canada;
·Sister – Pushpa Chand – living in Australia;
·Brother – Manoj Lal – living in Australia; and
·Sister – Pramina Kumari Singh – living in Fiji.
The applicant failed to provide details of one of his wife’s sisters and their daughter.
On 25 July 2017, the Department wrote to the applicant noting the anomalies in the information provided in the application and in the response to the request for further information made by the Department and the information provided by the applicant in his Visitor visa application. It was noted that the information in the application appeared to be false or misleading in relation to a material particular in respect of the application as he was required to establish that he met the definition of the remaining relative. Based on this information, it appeared that the applicant did not meet the criteria in PIC 4020(1). The applicant was also invited to provide any information as to any compelling circumstances affecting the interest of Australia or compassionate or compelling circumstances affecting the interest of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen to justify the waiving of the PIC 4020 criteria.
The applicant responded on 22 August 2017, apologising for the errors made in the application and providing further details of his and his wife’s family. He provided a Form 1023, Notification of Incorrect Answers. He claimed the reason for not including the information was due to “a misunderstanding in interpreting the requirements of the questions”.
The delegate who considered the application noted the following issues:
·There is an expectation that applicants for visas to enter or remain in Australia provide full and correct information in those applications;
·The forms completed by the applicant clearly instruct all applicants for the visa to declare all family members, including deceased family members, and family members living outside Australia;
·The applicant had the services of a migration agent throughout the time that the applications were being completed;
·The applicant had previously been able to provide all the details of his family when completing his Visitor visa application;
·The claim that the failure to provide the information was a mistake is not plausible; and
·The non-disclosure by the applicant of his family members appear to be a deliberate attempt to mislead the Department in order to try to meet the criteria for the grant of the visa.
Taking these matters into account, the delegate found that the applicant had provided information that was false and misleading in a material particular relevant to the grant of the visa. Therefore, the applicant did not meet the criteria in PIC 4020(1). The delegate noted that no information had been provided why that criteria should be waived pursuant to PIC 4020(4). Accordingly, the delegate found the applicant did not meet the requirements of PIC 4020 and therefore did not meet the criteria in cl.835.223.
The delegate then went on to consider whether the applicant met the definition of the remaining relative to satisfy the criteria in cl.835.212.
The delegate noted that to meet the definition of a remaining relative the applicant needed to satisfy the criteria in r.1.15 of the Regulations. This required, in part, that the applicant and the applicant’s spouse have no near relatives other than near relatives who are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. A near relative included the parties’ parents, brothers, sisters, stepbrothers, stepsisters and any child over the age of 18 and not a dependent.
The delegate noted the applicant and his wife had multiple relatives who resided in New Zealand, Fiji and Canada. This included their adult child who was married and resided in Fiji. Although it was claimed the applicant did not have close relationships with his stepsisters, the quality of the relationship was not a relevant consideration when considering whether the applicant had any near relatives who were not resident in Australia.
The delegate concluded that the applicant did not meet the definition of a remaining relative and therefore did not meet the criteria in cl.835.212. As the applicant did not meet the criteria in both cl.835.212 and cl.835.223 the delegate refused the application.
As the applicant did not meet the criteria for the grant of the visa, the second named visa applicant, his wife, did not meet the criteria of being a member of the family unit of the person who met the primary criteria. Accordingly, her application was also refused.
Information to the Tribunal
The sponsor wrote to the Tribunal where he made the following claims:
·He apologised for the mistake because he thought “that once family that got married is other family side”;
·He is now divorced and the applicants are living with him; and
·He has worked for 25 years and would like them to stay with him and he will support them.
Letters were provided from other relatives stating that they would support the applicants.
The applicants appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.
The Tribunal commenced the hearing by explaining to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what this information was, why it was relevant and then invite the applicant to comment on or respond to the information. If he required more time he could request an adjournment.
The applicants were represented in relation to the review by their registered migration agent. The applicant contacted the Tribunal on 3 April 2019 saying that he was no longer using the services of his migration agent.
The applicant said that he was currently living with his brother and he was being financially supported by his brother. He said that his brother separated from his wife about three and a half years ago and his (the applicant’s) wife was now helping to do the housework in the home. He said that if he was granted a visa he would work.
The applicant claimed that he did not know that the information about his and his wife’s relatives who did not reside in Australia was not included in the application. He said that his brother (the sponsor) had been dealing with a migration agent and he did not know what was in the application.
The Tribunal referred to the process under s.359AA of the Act set out above. The Tribunal referred to the applicant’s Visitor visa application. The Tribunal noted that in the documentation provided in support of that application the applicant had provided details of his daughter and all other relatives including his brothers and sisters who did not reside in Australia. This was relevant as it indicated the applicant was aware that when the Department required information about all relatives he was required to provide information about his daughter, regardless of whether she was married or not, and all his brothers and sisters. This indicated it was not plausible the applicant believed that, in relation to the Remaining Relative visa application, he would not be required to provide this information.
This information was also relevant as it indicated the applicant and his wife had multiple near relatives who do not reside in Australia and therefore the applicant did not meet the definition of a remaining relative which required that he have no near relatives other than near relatives who are usually resident in Australia.
The applicant again said that it was only his brother who spoke to the agent. He said that he was not blaming his brother but that he, the applicant, did not know much about what was done in the application.
The applicant said that he understood that he did not meet the definition of the remaining relative and therefore did not meet that criterion for the grant of the visa.
The Tribunal invited the applicant to provide any compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian resident to justify the granting of the visa. The applicant again claimed that he did not know that information about his and his wife’s relatives was not included in the application. He said that he was not able to give any comment about any compassionate or compelling circumstances.
The applicant said that his brother had returned to Fiji on at least one occasion since the applicant had been living in Australia. He said that this was for about two or three weeks and he returned to Fiji to visit friends and relatives and to spend time looking after the applicant’s property. He provided details of relatives the sponsor has in Australia, saying that he has a good relationship with them and sees his sister in Australia regularly.
The applicant’s wife gave evidence in support of the application. She said that the migration consultant formulated the application and they were told it was not necessary to include their daughter as she was married. She said that they provided all the information about the relatives who did not live in Australia to the consultant and it was the consultant who decided what information should be included in the application.
The applicant’s brother (the sponsor) gave evidence in support of the application. He said that it was the migration agent who prepared the application. He said that he provided all the information to the migration agent about their family members and it was the migration agent who decided what information to include in the application.
The sponsor said that he would be able to support the applicant and his wife in Australia. He said that he had been working all his time in Australia. He said that he has a good relationship with his sister in Australia. He separated from his wife a number of years ago. He has three children in Australia, all of whom are adults, and he has a good relationship with all of them.
The sponsor acknowledged that as the applicant had multiple relatives who did not reside in Australia that he did not meet the definition of the remaining relative. He agreed that on that basis alone, the applicant was not entitled to the grant of the Remaining Relative visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant meet the criteria in PIC 4020?
The first 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: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting three 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: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2B) and (2BA).
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). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5). 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.
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.
The information identified by the Department that was false or misleading in a material particular in relation to the application for the visa was the failure of the applicant to provide any details of his and his wife’s near relatives who are not usually resident in Australia. This included the applicant’s daughter, his mother-in-law and five siblings, all of whom do not reside in Australia.
The fact that the applicant is applying for a permanent visa on the basis of his claim that he is a remaining relative of the sponsor makes it fundamental that he disclose any relatives he has and details of where those relatives reside. The applicant only provided some of the details of his relatives after the Department had contacted him and requested further information.
The Tribunal does not accept that the failure to provide this information in the application is simply the fault of the applicant’s migration agent. The information provided by the applicant and the sponsor was that all information about their relatives was provided to the migration agent. The applicant and his wife signed the declaration on the application that the information supplied in the application was complete, correct and up-to-date in every detail. As the applicant was applying for the visa on the basis that he was the remaining relative of the sponsor it is obvious that he would be required to provide all information about any relatives he has. That no information was provided as to his relatives, apart from declaring his parents were deceased, indicates the applicant and his agent would have been aware that they had failed to provide information which was a material particular in relation to the application for the visa and that the information he provided was not complete in every detail. The Tribunal does not accept any claim by the applicant or the sponsor that they did not have any responsibility for the preparation of the application and merely blame the applicant’s agent for the omission. Regardless of whether the applicant was aware of what information his agent put in the application, the failure to provide the information as to the applicant’s and his wife’s near relatives was intentionally deceptive.

The applicant had previously provided information about his relatives when applying for his Visitor visa. In that application, he and his wife provided details of their daughter, siblings and the applicant’s wife’s mother all of whom resided overseas. The fact that they provided information about their daughter indicates the claim that they did not believe that she would be considered their child as she had married and was now on “the other side of the family” is unlikely. It is clear that the applicant considered their daughter as their child when they filed the applications for a Visitor visa and they would have been aware of their responsibility to disclose the fact they had a child living in Fiji when they applied for the Remaining Relative visa.
The Tribunal does not accept the fact that because they considered their relationships with their siblings was not good they were not required to provide this information. Again, the fact that they provided this information in the Visitor visa application shows the applicant and his wife were aware of their responsibility to provide the information regardless of the nature of their relationship with those siblings and the fact that they were not included in the Remaining Relative visa application shows a deliberate intention to provide false and misleading information.
For the above reasons, the Tribunal finds the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
There is no information which would indicate there are compelling circumstances that affect the interests of Australia to justify the granting of the visa.
Little information has been provided as to any compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen which would justify the granting of the visa. The only information about any Australian resident, where it could be interpreted they would be affected regarding whether the visa was granted, is the sponsor. The basis of this was that the sponsor’s marriage had come to an end and he wanted his brother and wife to live with him. It was claimed that the applicant’s wife did the housework for the sponsor.
There is no information which would indicate the sponsor is suffering from any mental health issues or is not able to cope as a result of the breakdown of his relationship with his wife. His relationship with his wife was said to have ended three and a half years ago. This was more than a year prior to the applicant and his wife arriving in Australia on a Visitor visa. There is no information which would indicate the sponsor was not coping at the time the applicant and his wife arrived in Australia as a result of the breakdown of his marriage.
There is no information that the sponsor has not been able to continue his work in Australia. He provided details of his employment and claimed that he was willing and able to provide full support to the applicant and his wife. There is no information which would indicate the sponsor has been dependent upon the applicant or his wife for any reason, including doing the housework. The applicants have provided statements from other friends and relatives in Australia indicating that they are willing to support them. If the sponsor had any difficulties as a result of the breakdown of his relationship, it would appear that these friends and relatives would be able to provide support to him. The evidence given by the parties and the sponsor was that he had a good relationship with his family in Australia, which includes his three children. There is nothing to indicate that they would not be able to provide support to him.
In all the circumstances, the Tribunal is not satisfied that there are any compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen which would justify the granting of the visa. In coming to this conclusion, the Tribunal is cognisant that the applicant does not meet the criteria for the grant of the visa for the reasons set out below. The Tribunal takes into account, however, that if the applicant is found not to meet PIC 4020 that they may not meet the criteria for the grant of a further visa for the period of three years after the Department’s decision to refuse the application on the grounds that they did not satisfy PIC 4020.
For the above reasons, the Tribunal finds the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.835.223.
Does the applicant meet the definition of the remaining relative?
The Tribunal has considered further whether the applicant meets the criteria in cl.835.212 which requires him to be a remaining relative of an Australian citizen. The visa application was made on the basis that the applicant is the remaining relative of Dharmendra Singh, 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).
In this case Dharmendra Singh is the applicant’s brother and is an Australian citizen and therefore is an Australian relative for these purposes.
Is the applicant a remaining relative of an Australian relative?
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.
No near relatives: r.1.15(1)(c)
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 means a person who is a parent, brother, sister, stepbrother or stepsister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or stepchild, 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.
In the application, the applicant failed to provide any details of any of his relatives who were not living in Australia. The applicant has now acknowledged that he has the following near relatives who do not usually reside in Australia:
·Brother – Chandra Bhan Singh – living in Canada;
·Brother – Jitendra Singh – living in New Zealand;
·Sister – Meenal Rachna Prasad – living in Fiji; and
·Daughter – Marshneel Prakash – living in Fiji.
The applicant has acknowledged that his spouse has the following relatives who are not usually resident in Australia:
·Mother – Amika Chandler – living in Canada;
·Sister – Sagita Kumari Singh – living in Fiji;
·Sister – Pramina Kumari Singh – living in Fiji; and
·Daughter – Marshneel Prakash – living in Fiji.
Accordingly, the applicant has acknowledged that he and his spouse have seven relatives, including their daughter, who are not usually resident in Australia and are not Australian citizens, permanent residents or eligible New Zealand citizens. During the hearing before the Tribunal, the applicants and the sponsor all acknowledged that as the applicant and his wife have multiple relatives who do not reside in Australia the applicant does not meet the definition of a remaining relative and accordingly the applicant does not meet the criteria for the grant of the Remaining Relative visa on this basis.
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.
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.
As the first named applicant does not meet the criteria for the grant of the visa, the second named applicant is not a member of the family unit of a person who meets the primary criteria. Accordingly, the decision to refuse her application must also be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Hugh Sanderson
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1)      There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply 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.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
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).

[2019] AATA 2407

12 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice