Sio (Migration)

[2017] AATA 246

Sio (Migration) [2017] AATA 246 (8 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ese Sio

CASE NUMBER:  1609111

DIBP REFERENCE(S):  CLF2016/22313

MEMBER:Hugh Sanderson

DATE:8 February 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 08 February 2017 at 10:20am

CATCHWORDS

Migration – Other Family (Residence)(Class BU) visa – Subclass 835 – Remaining relative – Sponsorship requirements – Cannot be sponsored by a child – Poor migration advice – No provision to change the sponsor

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 835.212, cl 835.213, cl 835.221, r 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 30 May 2016 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 6 April 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 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).

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate found that the applicant is not a remaining relative as defined in reg.1.15(1)(a) because the sponsor of the applicant was her son.

   Background

4. The applicant is a citizen of New Zealand. She was born in Samoa and is currently 64 years old. She has three siblings, one of whom is deceased and the other two reside in Australia. She was previously married and her husband died in 1982. She has three children, Luafa currently 43 years old, Alani currently 39 years old, and Tagiilima currently 33 years old. All of them reside in Australia.

5. The applicant was sponsored in her application by her son, Alani.

6. The delegate who considered the application noted the applicant was required to be a remaining relative of an Australian relative as defined in reg.1.15. The applicant must be sponsored by the Australian relative. The definition of an Australian relative in reg.1.15(1)(a) requires the applicant to be a remaining relative of a parent, brother, sister, stepbrother or stepsister of the applicant. The definition does not include being a remaining relative of a child of the applicant.

7. As the applicant was sponsored by her son the delegate concluded that she did not meet the definition of a remaining relative and therefore did not meet the criteria in cl.835.212 and refused the application.

8. The applicant made submissions to the Tribunal where she claimed the following:

   ·She had obtained advice from a migration lawyer who had told her that her son could sponsor her for the visa;

   ·She is currently being cared for by her son and her other children all of whom live in Australia; and

   ·Alternatively, she would like to change the sponsor so that it was one of her siblings.

9. The applicant appeared before the Tribunal on 8 February 2017 to give evidence and present arguments. The Tribunal also heard from the applicant’s daughter and son.

10. The applicant and her daughter set out the frustration they had encountered in receiving what they believed was poor and incorrect advice from a migration agent and also from the Department. The Tribunal’s role was discussed noting that it was required to apply the law and that if there were complaints about incorrect advice given by the Department or a migration agent there were other bodies to who complain about the incorrect advice.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the current application is whether the applicant meets the sponsorship requirements for the grant of the visa.

    Is the applicant a remaining relative of an Australian relative?

13. 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.

14. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

15. 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)

16. Clause 835.212 requires that at the time of the application the applicant is a remaining relative of an Australian relative and cl.835.213 requires that the applicant is sponsored by the Australian relative or by their spouse or de facto partner.

17. As stated above, the person who is required to sponsor the applicant must be a parent, brother, sister, step-brother or step-sister of the applicant. It does not include a child of the applicant. As the applicant was sponsored by her child, the applicant was not sponsored by a person as defined in r.1.15(1)(a). As the criteria in r.1.15(1)(a) is not met, the applicant does not meet the requirements of cl.835.212.

18. It was argued that if the applicant had been sponsored by either her brother or sister she would meet the criteria for the grant of the visa and it was requested that the sponsor be changed to either her brother or sister. There is no provision in the legislation to allow the change in the sponsorship of the applicant. Even if there was provision to allow a change in the sponsor, the applicant is required to meet the time of application criteria as well as the criteria at the time of the decision. As such, changing the sponsor would not overcome the fact that the applicant does not meet the criteria at the time of the application.

19. As there is no provision to change the sponsor and as the sponsor of the applicant is not a person who falls in the definition of r.1.15(1)(a) the applicant does not meet the criteria in cl.835.221.

20. The applicant provided documents which highlighted the fact that a near relative is defined as a parent, sibling, non-dependent child or step equivalents. This, however, is relevant when considering whether the applicant has no near relatives other than those residing in Australia as required in r.1.15(1)(c). A non-dependent child is taken into account when assessing whether the applicant meets the definition of a remaining relative when assessing where those relatives reside. This does not change the requirement that the applicant must be sponsored by a parent, brother, sister, step-brother or step-sister as is required by r.1.15(1)(a).

21. 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. There is no claim that the applicant is the carer of any Australian relative and the applicant does not meet the age criteria for the grant of an Aged Dependent Relative visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Hugh Sanderson
    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).