TEWAJAROENGUN (Migration)

[2020] AATA 2398

TEWAJAROENGUN (Migration) [2020] AATA 2398 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wanutda TEWAJAROENGUN

CASE NUMBER:  1826034

DIBP REFERENCE(S):  CLF2018/171154

MEMBER:Kira Raif

DATE:23 June 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 23 June 2020 at 12:15pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – ‘remaining relative’ of an ‘Australian relative’ – no ‘near relatives’ requirement –father and adult children not resident in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 23 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 June 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 a remaining relative of an Australian relative. The applicant seeks review of the delegate’s decision.

3. On 29 May 2020 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 24 June 2020. On 23 June 2020 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. 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). Relevantly to this matter, the primary criteria to be met include cl.835.212.

5. 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. 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.

6. ‘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.

   Is the applicant a remaining relative of an Australian relative?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated in the application form that her relatives included two parents and three children. The applicant stated that her mother resides in Australia and her father and three children reside in Thailand. The delegate noted that the applicant had not presented evidence of her adult children’s dependency and she also stated that her minor child was in the care of a former partner. The delegate found that the applicant’s father was a near relative and that he was resident in Thailand. 

8. The applicant has not presented further evidence to the Tribunal in relation to the issues raised in the primary decision record. The Tribunal finds that the applicant’s father is a near relative for the purpose of r. 1.15(1)(c) and there is no evidence that he is resident in Australia and is an Australian citizen or a permanent resident or an eligible New Zealand citizen. Further, there is no evidence that the applicant’s adult children are dependent on her or that her minor child is in the applicant’s daily care and control. On the limited evidence before it, the Tribunal finds that these children are also the applicant’s ‘near relatives’.

9. The Tribunal is not satisfied that the applicant has no near relatives. 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. The applicant does not meet cl. 835.212 and cl. 835.221.

10. The applicant was born in September 1974 and she is not old enough to be granted an aged pension. She does not meet the requirements for the grant of the Aged Dependent Relative visa. The applicant has not claimed to be a carer of another person and her application was not accompanied by evidence that the relevant certificate had been sought. The Tribunal finds that the applicant did not make a valid application for a Carer visa and she would not meet the requirements for the grant of such a visa.

    Conclusion

11. 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

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

    Kira Raif
    Senior Member