Sultana (Migration)

[2018] AATA 4491

Sultana (Migration) [2018] AATA 4491 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Abida Sultana

VISA APPLICANT:  Ms Najnin Sultana

CASE NUMBER:  1722541

DIBP REFERENCE(S):  OSF2016034472

MEMBER:Hugh Sanderson

DATE:19 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 September 2018 at 12:52pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – remaining near relative – mother and siblings in Australia – children reside in home country with ex-husband – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15 Schedule 2 cls 115.211, 115.221

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 11 July 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 July 2016. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that cl.115.211 was not met because the delegate was not satisfied the applicant met the definition of a remaining relative in r.1.15. Specifically, the delegate found that the applicant had two near relatives (her two children) who were not usually resident in Australia.

   Background

4. The visa applicant is a citizen of Bangladesh and is currently 38 years old. She was sponsored by her mother (the review applicant) who first entered Australia in 2008 and has since become an Australian citizen. The visa applicant has a brother, Md Noor A Alam Khan, and a sister, Nusrat Jahan. Departmental records indicate they both reside in and are citizens of Australia. The visa applicant’s father is deceased.

5. The visa applicant was previously married to Mohammed Abdullah Al Marun. There are two children of that relationship, a daughter Marium Labiba Mahdi and a son Talukder Nafew Alif Nafi, who are both 10 years old. It was stated that the visa applicant’s husband divorced her on 29 October 2014. The divorce was registered on 3 February 2015.

6. It was claimed that after the divorce the children lived with their father and the visa applicant’s husband and his family had denied the visa applicant the custody of the children.

7. The delegate who considered the application noted that in order to meet the definition of a remaining relative in r.1.15 the applicant was required to show that she had no near relatives other than near relatives who are usually resident in Australia. A near relative includes a person’s children who do not live with them, regardless of the nature of the relationship they have with that person. As the visa applicant had two children who continued to reside in Bangladesh she did not meet the definition of a remaining relative and therefore did not meet the criteria in cl.115.211.

8. As the applicant did not make any claims that she met the criteria for a Subclass 114 Aged Dependent Relative visa or a Subclass 116 Carer visa she did not meet any criteria for the grant of the Other Family (Class BO) visa. Accordingly the application was refused.

9. The review applicant appeared before the Tribunal on 18 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Nusrat Khan (the review applicant’s daughter). The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

10. The review applicant confirmed that at the time of the application the visa applicant had two children who were in the sole care of their father who the visa applicant had divorced. At the time of this decision, it was claimed that the visa applicant’s daughter had returned to live with her while her son continued living with his father. The definition of a remaining relative was explained to the applicant and the reasons why the visa applicant did not satisfy that definition.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The visa application was made on the basis that the visa applicant is the remaining relative of review applicant, who the visa 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).

13. In this case the review applicant is the visa applicant’s mother and an Australian citizen and therefore is an Australian relative for these purposes.

    Is the visa applicant a remaining relative of an Australian relative?

14. To be granted a Subclass 115 visa the visa 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.115.211 and cl.115.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

15. 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 visa applicant and is ‘usually resident in Australia’.

16. The visa 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 visa applicant is an adopted child.

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

17. Regulation 1.15(1)(c) requires that the visa applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

18. ‘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, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, 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.

19. The evidence provided by the visa applicant and her family is that the visa applicant was previously married to Mohammed Abdullah All Mamun. They had two children, twins, who are now aged 10 years old. The visa applicant and her husband were divorced in 2014. The parties’ children remained living with the visa applicant’s former husband after the divorce.

20. The issue before the Tribunal is simply whether the applicant has any near relatives except those that are usually resident in Australia. The nature of the visa applicant’s relationship with any near relatives is not relevant to establishing whether she meets the definition of a remaining relative.

21. The undisputed fact is that the visa applicant has two children who have not turned 18 who were not, at the time of the application, wholly or substantially in the daily care and control of the visa applicant. The two children of the visa applicant were in the sole care and control of the visa applicant’s former husband at the time of the application. They continue to live in Bangladesh. Her former husband and his family may have prevented the visa applicant from seeing her children at that time, however, this does not overcome the fact that those children did not reside in Australia and therefore the visa applicant did not meet the definition of a remaining relative in reg.1.15 at that time.

22. It was claimed by the review applicant that at the time of this decision the visa applicant’s daughter has returned to live with her while her son continues to live with his father. Again, the fact is that the visa applicant has a child, her son, who has not turned 18 and is not wholly or substantially in her daily care and control. As that child continues to live in Bangladesh the visa applicant does not at the time of this decision meet the definition of a remaining relative in reg.1.15.

23. 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.

24. The review applicant brought up many concerns that she had for her daughter in Bangladesh. This is not relevant when considering whether the visa applicant meets the criteria for the grant of the visa. Although the review applicant has her other children living in Australia and wants her last child to join here, this is not a criterion for the grant of the visa. If the visa applicant does not meet the criteria that must be satisfied for the grant of the visa then the Tribunal has no option but to affirm the decision of the Department to refuse the application.

25. For the reasons set out above, the Tribunal is not satisfied that the visa applicant is the remaining relative of an Australian Relative at the time of application and at the time of decision for the purposes of cl.115.211 and cl.115.221.

26. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.

    DECISION

27. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) 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).