Slewa (Migration)

[2022] AATA 1917

Slewa (Migration) [2022] AATA 1917 (24 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rana-Fransis Slewa
Mr Mario Nazar
Miss Emma Merian Nazar

REPRESENTATIVE:  Ms Suzy David

CASE NUMBER:  1832753

HOME AFFAIRS REFERENCE(S):          CLF2013/73386

MEMBER:Russell Matheson

DATE:24 May 2022

PLACE OF DECISION:  Sydney

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

·PIC 4015 for the purposes of cl.835.225 of Schedule 2 to the Regulations and

the second named and third named applicants meet the following criteria for a Subclass 835 (Remaining Relative) visa:

·PIC 4017 for the purposes of cl.835.324 of Schedule 2 to the Regulations.

Statement made on 24 May 2022 at 10:16am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – applicant has sole parental responsibility for the children – grant of the visa would be consistent with any Australian child order in force – court order provided – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, r 1.15; Schedule 2, cls 835.225, 835.324

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 19 October 2018 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 4 April 2013 on the basis of her relationship with her sponsor (her mother). 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl 835.225.

3. The delegate refused to grant the visas on the basis that cl 835.225 was not met because the delegate considered there was no evidence before the Department to indicate that the applicant had obtained an Australian court order giving her sole parental responsibility and the right to determine whether the secondary applicants can live with her. The delegate noted that the first named applicant had not provided a signed letter from the non-migrating parent. The delegate was therefore not satisfied the applicant met cl 835.225 of the  Regulations, specifically that she satisfied Public Interest Criteria (PIC) 4015.

4. The applicant’s representative requested the Tribunal to make a decision based on the papers.

5. In reaching its decision the Tribunal did not consider a hearing necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   Background

7. At the time of the decision by the delegate, the delegate considered that there was no evidence to indicate the applicant had obtained an Australian court order giving her sole parental responsibility and the right to determine where her son and daughter can live. She had also not provided a signed letter from the non-migrating parent.

8. The applicant was born in March 1978. She migrated to Sweden in [2002].

9. The applicant married Mr Ala Nazar (her former husband) in Sweden, initially in a religious ceremony in September 2003, and subsequently in a state ceremony in August 2005.

10. The applicant and her former husband have two children from the marriage, Mario born in [year] (the second named applicant) and Emma born in [year] (the third named applicant). Both children were born in Sweden.

11. The applicant, her former husband and their children are all citizens of Sweden.

12. The applicant, her former husband and children travelled to Australia in December 2012 to attend the applicant’s brother’s wedding and remained in Australia.

13. In April 2013, the applicant lodged an application for an 835 visa sponsored by her mother. The applicant and her children (and previously the applicant’s husband) were the last remaining relatives of the sponsor.

14. In January 2014, whilst awaiting the outcome of their application the applicant’s former husband returned to Sweden to work because he was not granted permission to work in Australia.

15. In April 2014 the initial application was refused by the Department because the parties were unable to provide a death certificate in respect of the former husband’s parents in order to satisfy the criteria in cl 835,212 and cl 835.221 of Schedule 2 to the Regulations. In August 2015 the parties sought review of the decision and a differently constituted Tribunal remitted the matter to the Department with a direction the parties met the criteria.

16. In March 2016 the Swedish Court granted dissolution of the parties’ marriage. The applicant made an application for custody of the children which was refused by the Swedish Court, applying the Hague Convention 1996 2^nd Chapter, Article 5 as it was not a court of competent jurisdiction which could grant such custody given that the children were not domiciled in Sweden.

17. In August 2018 a letter was sent to the applicant’s former husband requesting him to consent to the applicant’s having sole custody of the children from the marriage but received no response.

18. In October 2018 the Department notified the applicant of refusal of her application on the basis that cl 835.225 in Schedule 2 to the Regulations was not satisfied and granting of the visa would be contrary to PIC 4015)

19. On 22 April 2022, orders were made by the Federal Circuit and Family Court of Australia granting sole parental responsibility of Mario and Emma to the applicant and further ordered that the children reside with the applicant and spend time with the father as agreed between the parties. A copy of the court orders were provided to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant can lawfully determine where her son, the second named applicant and her daughter, the third named applicant are to live, and whether the grant of the visa would be consistent with any Australian child order in force in relation to the additional applicant.

21. Further, for the children to meet the criteria for the grant of the visa they are required to satisfy cl 835.324 which in turn required them to satisfy PIC 4017.

22. With the application to the Tribunal the applicants submitted a copy of court orders made in the Federal Circuit and Family Court of Australia.

23. The requirements of PIC 4015 are as follows:

    4015

    The Minister is satisfied of 1 of the following:

    (a)      the law of the additional applicant’s home country permits the removal of the additional applicant;

    (b)      each person who can lawfully determine where the additional applicant is to live consents to the grant of the visa;

    (c)      the grant of the visa would be consistent with any Australian child order in force in relation to the additional applicant.

    4017

    The Minister is satisfied of 1 of the following:

    (a)      the law of the applicant’s home country permits the removal of the applicant;

    (b)      each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

    (c)      the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

24. In order to meet the requirements of this criteria, the applicant provided to the Tribunal a copy of orders made on 22 April 2022 in the Federal Circuit and Family Court of Australia pursuant to the Family Law Act 1975 (Cth) (the Family Law Act). The orders state as follows:

    Court orders

    ·That the mother has sole parental responsibility for Mario Nazar born [date] and Emma Meerian Nazer born [date] (hereafter collectively referred to as children).

    ·That the children reside with the mother.

    ·That the children spend time with the father as agreed between the parties.

25. The applicant has now provided to the Tribunal a court order pursuant to the Family Law Act in the Federal Circuit and Family Court of Australia which states that the children shall live with their mother and that the applicant has sole parental responsibility for the children. The Tribunal is satisfied that under the terms of these orders the applicant is a person who can lawfully determine where the additional applicants are to live. The applicant has the children living with her in Australia. Accordingly, the Tribunal is satisfied the requirements of PIC 4015(b) and PIC 4017(b) are met.

26. The Tribunal is further satisfied that the grant of the visa would be consistent with any Australian child order in force in relation to the applicant’s son and daughter and accordingly PIC 4015(c) and PIC 4017(c) are met.

27. 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

28. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·PIC 4015 for the purposes of cl 835.225 of Schedule 2 to the Regulations and

    the second named and third named applicants meet the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·PIC 4017 for the purposes of cl.835.324 of Schedule 2 to the Regulations.

    Russell Matheson
    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).