Subramaniam (Migration)

[2020] AATA 5090

Subramaniam (Migration) [2020] AATA 5090 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Neermala Subramaniam

CASE NUMBER:  1825950

DIBP REFERENCE(S):  CLF2018/49387

MEMBER:Kira Raif

DATE:21 August 2020

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 21 August 2020 at 11:40am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – not satisfied that the applicant has no half-siblings –no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 835.212, 835.221

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 15 August 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 22 May 2018. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate was not satisfied the applicant was the remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

4. The applicant appeared before the Tribunal by teleconference 11 June 2020 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, 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).

6. 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).

7. 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.

8. 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’.

9. 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.

   Is the applicant a remaining relative of an Australian relative?

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated on the application form that her sister was resident in Australia and her mother was deceased. The applicant referred to her father, stating that his whereabouts were unknown. In her subsequent submission to the delegate the applicant explained that she had no contact with her father for a number of years.

11. The applicant provided further evidence to the Tribunal on 4 June 2020. The applicant provided a statement outlining her educational and family background, her past and present circumstances. The applicant provided evidence of her employment and other materials. The Tribunal acknowledges and accepts that evidence.

12. In oral evidence, the applicant told the Tribunal that her biological father had passed away. The applicant explained the circumstances of her mother’s death and said that to have her mother’s body released, they had to provide the identity of her father, which is the only reason his name appears on the mother’s death certificate. The applicant said that prior to his death, her father wanted nothing to do with her and her sister and did not wish to see them. The applicant said that she cannot provide evidence of her father’s passing as she has never had any contact with him and there are no people left alive who maintained contact with him.

13. The Tribunal found the applicant to be a truthful witness. However, the Tribunal is concerned by the absence of any probative evidence – other than the applicant’s own evidence – to confirm the death of her father. The applicant’s evidence is that she obtained the information through a third party who is no longer alive. There is no way to verify the information supplied by the applicant concerning the death of her father. Even in the absence of a formal death certificate, it would be desirable to see other evidence of death, such as hospital, medical or burial records. While the Tribunal appreciates the applicant’s evidence as to why such records are not readily available, the Tribunal is not prepared to accept the applicant’s statement about her father’s passing without some supporting evidence. In reaching this conclusion, the Tribunal acknowledges that the applicant had taken considerable steps to locate her father and to ascertain his present circumstances. However, the Tribunal is mindful that there has not been a definitive response in relation to the father’s whereabouts or his death.

14. The applicant provided further written evidence to the Tribunal on 10 August 2020. The applicant provided an outline of her family circumstances. The applicant submits that the presumption of death should be applied in this case, noting that she has not heard from her father for more than seven years, he has not been heard from or seen by those who would reasonably be expected to have heard from him, his whereabouts are unknown and there is no evidence to the contrary. The applicant states that the last known contact with her father was in 2008 and she has made significant attempts to find him but his whereabouts remain unknown. The applicant presented evidence of her communication with several agencies attempting to locate her father.

15. As for other relatives, the applicant refers to Departmental policy which provides that step-children are not considered near relatives where the relationship between the child’s parent and non-biological parent has broken down. The applicant submits that the same reasoning should apply in relation to any step-siblings as any relationship with potential step-siblings would be severed upon the death of the father. Alternatively, the applicant submits that the existence of any step-siblings is made redundant by the application of the presumption of death.  The applicant claims that the application of the definition of ‘near relative’ leads to an unfair and unreasonable result otherwise.

16. The Tribunal accepts that the applicant has not had any contact with her father for many years. The Tribunal accepts that the applicant has made efforts to locate her father and has not been able to do so and that she has been unable to obtain probative evidence of his death. However, the Tribunal does not need to determine whether the presumption of death should apply in relation to the applicant’s father. This is because the Tribunal cannot be satisfied that the applicant has no half-siblings. The applicant’s evidence is that she has not had any contact with the father for many years. It is possible, in the Tribunal’s view, that he has fathered other children and the applicant would be unaware of their existence. Contrary to the applicant’s submission, the Tribunal does not accept that  the applicant’s relationship with any half siblings would be severed upon the death of her father. Such siblings would be her blood relatives, unlike step-siblings where the sibling relationship would only come into existence due to the non-biological parent and may be severed upon the death of such parent.

17. The Tribunal accepts that the applicant is unaware of the existence of any half siblings. However, their existence cannot be excluded. It is up to the applicant to satisfy the Tribunal that she has no near relatives. She has not done so. Even if the Tribunal were to accept that the applicant’s father is presumed dead, the Tribunal cannot be satisfied that the applicant has no half-siblings, who would be considered the applicant’s near relatives.

18. The Tribunal is not satisfied the applicant has no near relatives other than those who are resident in Australia and who are Australian citizens or permanent residents or eligible New Zealand citizens. The Tribunal is not satisfied the applicant meets r. 1.15(1)(c) and cl. 835.212.

19. The applicant was born in 1964 and is not old enough to be granted an aged pension. She does not qualify for the Aged Dependent Relative visa. There is no evidence, and the applicant does not claim, that she is a carer of another person. The application was not accompanied by evidence that the applicant sought the relevant certificate. The Tribunal finds that the applicant did not make a valid application for a Carer visa and she would not have met cl. 836.221.

20. The applicant provided to the Tribunal evidence of her settlement in Australia, including evidence concerning her employment. The Tribunal acknowledges that evidence and accepts that the applicant is well settled in Australia. However, the Tribunal has no discretion to recommend visa grant on compassionate circumstances. The applicant may wish to seek Ministerial intervention on the basis of her present circumstances.

    Conclusion

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.

    DECISION

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

    Kira Raif
    Senior Member