Tar (Migration)

[2022] AATA 1257

Tar (Migration) [2022] AATA 1257 (21 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saw Kyaw Shu Larr Tar

CASE NUMBER:  2009202

HOME AFFAIRS REFERENCE(S):          CLF2018/190408

MEMBER:David Crawshay

DATE:21 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 21 March 2022 at 12:03pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – near relatives other than specified relatives usually resident in Australia – no response to tribunal’s invitation to provide information – forms provided with application list two siblings living in home and third countries – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 1.03, 1.15(1)(c), (2), Schedule 2, cls 835.212, 835.221

CASE
Hasran v MIAC [2010] FCAFC 40

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 26 May 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 August 2018. 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 (Cth) (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212, which requires an applicant to be a remaining relative of an Australian relative.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met because the delegate found that there were near relatives of the first-named applicant (the applicant) who were not usually resident in Australia.

4. On the basis of information on the Department file showing that the applicant had near relatives other than near relatives who were usually resident in Australia, on 4 March 2022 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act in the following relevant terms:

   On 26 May 2020, your application for an Other Family (Residence) (class BU) Remaining Relative (subclass 835) visa was refused because a delegate of the Minister found that you were not a remaining relative of the sponsor, Ms Sawn Yunt Bee Shwe Pa Lei, at the time of application. Specifically, the delegate found that Mr Saw Kyaw Shu Larr Htunt and Ms Nan Shyu Kalain Phaung, people who declared themselves as your siblings, were not Australian citizens, Australian permanent residents or New Zealand citizens or were usually resident in Australia, as required by r.1.15(1)(c) of the definition of “remaining relative” in the Migration Regulations.

   In light of the above, the Tribunal requests you to provide it with evidence that you:

   ·were the remaining relative of an Australian relative under cl.835.212 of the Migration Regulations at the time you applied for the visa on 7 August 2018; and

   ·currently continue to satisfy the requirements of cl.835.212, pursuant to cl.835.221.

   [emphasis in original]

5. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 18 March 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. As at the date of this decision, which is after the due date, the applicant has not provided the information and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal has then considered whether to proceed to decision without taking further steps to allow the applicant to provide further information to address the substantive issue revealed in its s.359(2) letter. However, given the confined nature of the provisions in question – which require the applicant to prove that he has no near relatives who are usually resident outside of Australia at the relevant times – and the presence of existing evidence that suggested that he was unable to meet the requirements in respect of at least the time of application criteria, the Tribunal finds that it is reasonable to proceed in this way.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The visa application was made on the basis that the applicant is the remaining relative of Ms Sawn Yunt Bee Shwe Pa Lei, whom 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).

10. In this case Ms Shwe Pa Lei is the applicant’s step-mother and an Australian citizen. Therefore, Ms Shwe Pa Lei is an Australian relative for these purposes.

    Is the applicant a remaining relative of an Australian relative?

11. 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. 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”.

12. An 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.

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

13. 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.

14. “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.

15. The applicant provided a Form 47A (“Details of child or other dependent family member aged 18 years or over”) in respect of Mr Saw Kyaw Shu Larr Htunt signed by him on 2 July 2018 and by the applicant on 19 July 2018. Mr Htunt declared that the applicant was his brother. Mr Htunt stated that he had been living in Myanmar at an address in Yangon and that his country of current residence was Myanmar. In the applicant’s Form 47OF application form dated 19 July 2018, he lists Mr Htunt as being a citizen of Myanmar.

16. The applicant also provided a Form 47A in respect of Ms Nan Shyu Kalain Phaung signed by her on 5 July 2018 and by the applicant on 19 July 2018. Ms Phuang declared that the applicant was her brother. Ms Phuang stated that she had been living in Japan at an address in Nagoya and that her country of current residence was Japan. In the applicant’s Form 47OF application form dated 19 July 2018, he lists Ms Phuang as being a citizen of Myanmar.

17. The Tribunal has had regard to this evidence. It has considered that the applicant has not provided any additional information concerning his family composition and where members of his family, including “near relatives”, live. This is despite being sent a s.359(2) letter on 4 March 2022.

18. Based on the evidence in front of it, the Tribunal accepts that Mr Htunt is the applicant’s brother and Ms Phaung his sister. It finds that the applicant’s brother, Mr Htunt, was living in Myanmar, and his sister, Ms Phaung, was living in Japan at the time of application.

19. The Tribunal finds that the applicant has near relatives who were usually resident in countries other than Australia at the time of application. Therefore, r.1.15(1)(c) is not met at the time of application.

20. The applicant therefore does not satisfy cl.835.212.

21. For the reasons above, the applicant does not meet the criteria for a Subclass 835 visa.

22. 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 evidence before the Tribunal that at the time of application the applicant claimed to be a carer of an Australian relative, as required by cl.836.212, or that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicant is therefore not entitled to the grant of a Subclass 836 (Carer) visa.

23. The evidence before the Tribunal indicates that the applicant was born on [date]. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as he is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of “aged dependent relative” in r.1.03 for cl.838.212 of Schedule 2 to the Regulations.

    DECISION

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

    David Crawshay
    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).