Tjien (Migration)

[2018] AATA 4625

Tjien (Migration) [2018] AATA 4625 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ong Sioe Tjien
Mr Rayzha Hermawan
Mr Raynaldi Hermawan
Mr Raynaldo Hermawan

CASE NUMBER:  1714645

DIBP REFERENCE(S):  CLF2016/52474

MEMBER:Russell Matheson

DATE:13 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 13 August 2018 at 12:19pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative visa) – sponsor is the cousin of the applicant – applicant is not related to sponsor/Australian relative or resident as required – Applicant has near relative(s) who is offshore – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 835.212, 835.213, 835.221, 835.312, 835.321

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 29 June 2017 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 August 2016. 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 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.212.

3. The delegate refused to grant the visas on the basis that cl.835.212 was not met because the primary applicant did not demonstrate she is the remaining relative of the sponsor.

4. The applicants appeared before the Tribunal on 9 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mrs Linda Dharma (the sponsor’s mother) and Mr Ben Sloiter and Mrs Joanne Sloiter. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa application was made on the basis that the primary applicant is the remaining relative of Ms Veronica Dharma, who the primary applicant claims is her 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).

8. In this case Ms Veronica Dharma is the applicant’s cousin living in Australia who is an Australian citizen and therefore cannot be an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

9. To be granted a Subclass 835 visa the primary 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.

10. 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’.

11. 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. Additional provisions apply if the applicant is an adopted child.

    The requirement to be a parent or sibling: r.1.15(1)(a)

12. The sponsor (the Australian relative) in this case is the cousin of the applicant and as such the primary applicant does not meet the definition of a remaining relative in r.1.15. As the Australian relative in this case is the cousin of the primary applicant, r.1.15(1)(a) is not met.

    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. On 30 August 2016 the primary applicant lodged a Remaining Relative (Residence) (Full) (BU 835) visa application. She had included her three dependent children in this visa application.

16. The primary applicant stated in her application that she has the following family members residing in Indonesia.

    ·    Chong, Giok Lien (applicants mother)

    ·    Mieke Apritia Andrjawan (applicants sister)

    ·    Chong, Siu Lie (applicants sister)

    ·    Ong Sie Ling (applicants brother)

17. On the 19 June 2017, the applicant was invited to comment on the finding that since she has family members overseas, she may not meet the relevant criteria for this subclass.

18. On 27 June 2017 the applicant sent her written response, she confirmed that she has near relatives residing in Indonesia and requested the Department of Immigration consider the following information in relation to her case.

19. The applicant informed the Department that she has been disowned by her family in Indonesia, because she left her husband and this is culturally unacceptable. The applicant further stated that she was a victim of domestic violence. The applicant also informed the Department that her cousin and sponsor for the visa Ms Veronica Dharma provided ongoing support to her and her children both financially and emotionally while they were in Indonesia and continues to support them in Australia.

20. At the Tribunal hearing the primary applicant and sponsor along with all the witnesses provided evidence confirming what the primary applicant had told the Department.

21. The sponsor’s mother, Mrs Linda Dharma and aunt of the primary applicant told the Tribunal that she had raised the primary applicant as her own child from a young age because her sister had disowned her. Mrs Dharma further stated that she viewed the primary applicant as her adopted child, although she is not officially adopted, and the primary applicant lived with her family in Indonesia until her family migrated to Australia in 1984. During the Tribunal hearing all the witnesses expressed in their evidence concern for the welfare of the primary applicant and her three children if they had to return to Indonesia. Based on all the evidence provided at the hearing, the Tribunal accepts that the primary applicant and her children have been the victims of domestic violence when living in Indonesia. The Tribunal is sympathetic towards the primary applicant and her family and also has concerns for the family’s welfare if returned to Indonesia. The Tribunal also accepts the evidence provided by all the witnesses that the primary applicant has no family support in Indonesia. The Tribunal accepts that the concerns for welfare are genuine.

22. The Tribunal has considered all the information provided by the applicant and witnesses for this case, but is bound by applying the relevant regulation to this visa subclass (BU 835).

23. The primary applicant has several near relatives currently residing and permanent residents in Indonesia and has provided no evidence to show that they are Australia citizens, Australian permanent residents or eligible New Zealand citizens, therefore the Tribunal finds that the primary applicant does not meet r.1.15(1)(c).

24. As the applicant has been assessed as having not met r.1.15(1)(c), the Tribunal finds that the applicant does not meet r.1.15, and therefore does not meet cl.835.212 in Schedule 2 to the Regulations.

25. The primary applicant has demonstrated that her sponsor is her cousin. A cousin is not a person who can sponsor a Subclass 835 visa.

    A person can sponsor a Subclass 835 applicant if the person:

    ·    is a parent, brother, sister, step-parent, step-brother or step-sister of the Subclass 835 primary applicant and

    ·    has turned 18; and

    ·    is a settled Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

    ·    is usually resident in Australia.

    or if the person:

    ·    is the partner of a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and

    ·    has turned 18; and

    ·    is a settled Australian citizen, Australian permanent resident or eligible New Zealand

    citizen; and

    ·    is usually resident in Australia; and

    ·    cohabits with their partner (who is the Australian relative).

26. 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) not met.

27. For the reasons set out above, the Tribunal is not satisfied that the applicant is the remaining relative of an Australian relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.

28. 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.

29. As cl. 835.212 and cl. 835.213 in Schedule 2 to the Regulations are not met by the primary applicant, the Tribunal finds the criteria for the grant of a Other Family (Residence) visa are not met by the primary applicant.

30. Under the migration law, a visa cannot be granted to a secondary applicant unless the secondary applicant meets the relevant legal requirements that are specified in the Act and the Regulations.

    Clause 835.312

    A sponsorship of the kind mentioned in cl.835.213 of the person who satisfies the primary criteria, approved by the Minister:

    (a)  Is in force; and

    (b)  Includes the sponsorship of the applicant.

    Clause 835.321

    The applicant continues to be a member of the family unit of a person, who having satisfied the primary criteria is the holder of a Subclass 835 visa.

31. The first primary does not meet cl.835.212 and cl.835.213 in Schedule 2 to the Regulations; hence the secondary applicants cannot meet cl.835.321 and cl.835.312 in schedule 2 to the Regulations.

    Decision

32. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    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).