Ulusan (Migration)

[2018] AATA 104

Ulusan (Migration) [2018] AATA 104 (15 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Eliana Ulusan

VISA APPLICANT:  Mr Ferdinand Gjini

CASE NUMBER:  1716566

DIBP REFERENCE(S):  OSF2017/014579

MEMBER:Margie Bourke

DATE:15 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 January 2018 at 4:25pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – Interpretation of the meaning parent – Meaning of other persons – Child of remaining relative

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15(1)(a), 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 18 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 12 October 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. Relevantly to this matter, the primary criteria to be met include cl.115.211.

3. The delegate refused to grant the visa on the basis that cl.115.211 was not met because the delegate was not satisfied that the applicant met the definition of remaining relative.

4. The review applicant appeared before the Tribunal on 2 November 2017 and 15 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, the visa applicant’s daughter, the visa applicant some and the visa applicant’s previous partner who all gave evidence at the hearing on 2 November 2017. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

5. At the conclusion of the hearing on 2 November 2017 the review applicant and representative raised issues in relation to the reliability of the interpreting in the hearing, after an onsite interpreter had been unavailable and a telephone interpreter had been arranged. The Tribunal agreed to schedule a further hearing to allow the visa applicant to give evidence on a second occasion with a different interpreter.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa application was made on the basis that the visa applicant is the remaining relative of Eliana Ulusan, 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).

9. Based on the review applicant’s birth certificate which records the name of her father, I am satisfied that the review applicant is the daughter of the visa applicant. Based on the review applicant’s certificate of Australian citizenship I am satisfied that she is an Australian citizen.

10. In this case Eliana Ulusan is the visa applicant’s daughter and is an Australian citizen and therefore is an Australian relative for these purposes.

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

11. 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.

12. 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’.

13. 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.

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

14. In the early stages of the hearing on 2 November 2017 I discussed with the review applicant and her representative the definition of remaining relative in r.1.15(1)(a). I indicated that the definition required that the review applicant should be the remaining relative’s parent or sibling or step sibling, and not his daughter as in this case. I indicated that the evidence before me suggested that the visa applicant did not meet the definition of remaining relative in r.1.15(1)(a).

15. After the hearing on 2 November 2017 was concluded and there had been an agreement that a further hearing would be scheduled at which an on-site interpreter would be provided, the Tribunal wrote to the review applicant and invited her to provide further information. One of the issues the review applicant was invited to provide submissions or comments or information in relation to was that the Australian relative of the visa applicant does not appear to be a parent or sibling or step sibling of the visa applicant.

16. The review applicant’s representative provided submissions arguing that at common law a parent was “simply the father and mother of the child and for a time”.  The representative submitted that the concept of “parent” is declared as the father and mother of the child but under unusual circumstances the paternal figures can be the daughters or sons of family members, including in this case the review applicant.  The representative also submitted comparative New Zealand legislation, policy and visa classes.

17. I have considered this submission carefully but respectfully disagree. The Regulations clearly identified the nature of relationships of persons who are defined as relatives in particular sections. The regulations identify in r.1.15(1)(a) that an applicant for the visa is a remaining relative of another person, if the applicant satisfies the Minister that the other person is a parent, brother, sister, stepbrother or stepsister of the applicant. In other sections of the Regulations, relatives for the purposes of those sections are identified as including grandparents, aunts, and uncles, nieces and nephews, and children. I am of the view that if the Regulations intended for children to be able to sponsor their parents in a remaining relative visa application, the regulations would have clearly stated in r.1.15(1)(a) that a child of the remaining relative could also be included as ‘the other person’.

18. I am not satisfied that the applicant for the visa is either a parent, brother, sister, stepbrother or stepsister of the applicant. I am not inclined to interpret that “parent” in r.1.15(1)(a) can be interpreted to mean “child”. I am not satisfied that the sponsor, Eliana Ulusan is either the parent, or sibling of the visa applicant and therefore the visa applicant does not meet the requirements of r.1.15(1)(a).

19. As the Australian relative in this case is the daughter of the applicant, r.1.15(1)(a) is not met.

20. Therefore the visa applicant does not meet the requirements of the definition of remaining relative. Accordingly the visa applicant is not the remaining relative of the Australian relative.

21. 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 for the purposes of cl.115.211.

22. 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

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

    Margie Bourke
    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).