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1003009 [2012] MRTA  1692  (15 June 2012)

Last Updated: 29 June 2012

1003009  [2012] MRTA 1692  (15 June 2012)


DECISION RECORD

APPLICANT: Ms Sunisa Akethummakul

MRT CASE NUMBER: 1003009

DIAC REFERENCE(S): CLF2008/109076

TRIBUNAL MEMBER: Simon Jeans

DATE: 15 June 2012

PLACE OF DECISION: Sydney

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


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 and Citizenship 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 to the Department of Immigration and Citizenship for an Other Family (Residence) (Class BU) visa on 23 June 2008. The delegate decided to refuse to grant the visa on 7 April 2010 and notified the applicant of the decision and her review rights by letter dated 7 April 2010.
  3. The delegate refused the visa application on the basis that the applicant did not satisfy cl.835.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied the applicant was a remaining relative of an Australian relative.
  4. The applicant applied to the Tribunal on 27 April 2010 for review of the delegate’s decision.
  5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

  1. At the time the visa application was lodged, the Other Family (Residence) (Class BU) visa contained Subclass 835 (Remaining Relative), Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative): Item 1123B of Schedule 1 to the Regulations. The only subclass in respect of which any claims have been advanced is Subclass 835 (Remaining Relative).
  2. The criteria for a Subclass 835 visa are set out in Part 835 of Schedule 2 to the Regulations. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an Australian relative at time of application: cl.835.212, and continue to be a ‘remaining relative’ at time of decision: cl.835.221. Remaining relative has the meaning set out in r.1.15 of the Regulations. This regulation has been the subject of a number of legislative amendments. The form of the regulation, as it applies in this case, is as follows:

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-parent, 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 (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-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any); or

(b) a child (including a step-child) of the applicant or of the applicant’s spouse (if any), being a child who:

(i) has turned 18 and is not a dependent child of the applicant or the applicant’s spouse (if any); or

(ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or the applicant’s spouse (if any).

  1. The other primary criteria to be satisfied at the time of application for this Subclass are that:
  2. The primary criteria to be satisfied at the time of decision are that:
  3. The issue in this application for review is whether the applicant is the remaining relative of an Australian relative.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
  2. The applicant is a national of Thailand, born in March 1985. The applicant applied for a Other Family (Migrant) Class BU visa on 23 June 2008. She was sponsored by her mother, Ms Monthakarn Ekthammakun. The applicant stated in her application form that she was separated, that her mother and only sibling resided in Australia and that her father resided in Thailand.
  3. The applicant provided a number of personal documents with the application including passport copies, birth certificate, and evidence of permanent residence of her mother and sister.
  4. On 7 April 2010 a delegate of the Minister made a decision to refuse to grant a Class BU visa to the applicant. She referred to information in immigration forms and other documentation provided with the application which indicated that her father was residing in Thailand and was not an Australian citizen or permanent resident or an eligible New Zealand citizen. The delegate found there was no evidence that the visa applicant’s father had been declared dead by a court. The delegate found the applicant did not meet the criteria for any of the other visa subclasses in Class BU.
  5. The applicant made an application to review the delegate’s decision on 27 April 2010.
  6. The applicant was represented in relation to the review by her registered migration agent, Ms Kathryn Johnson of Kathryn Johnson Migration Pty Ltd.
  7. According to the Department’s electronic movement records, the applicant's mother, the sponsor, was residing in Australia since June 2001 as the holder of a Class UC subclass 457 temporary business visa, that she was granted a Class BW subclass 856 employer nomination scheme visa on 25 May 2007 and has continued to reside in Australia apart from four journeys outside Australia of relatively short duration.
  8. The Tribunal wrote to the applicant on 7 May 2012 with information that would, subject to her comment or response, form the reason, or part of the reason for affirming the decision under review. This information related to information that had been provided in the applicant's application for a Class UK and Class BS partner visa lodged on 16 September 2005 (CLF2005/77555) which indicated that her father was divorced and living in Thailand, and information in the applicant's mother's employer nomination scheme visa application lodged on 1 June 2005 (CLF2005/43957) which indicated that the applicant’s father was residing in Thailand. The Tribunal stated that this indicates the applicant’s father was alive and living in Thailand. The Tribunal stated that if she had a near relative not residing in Australia, which included a parent, she could not meet the definition of "remaining relative" in r.1.15.
  9. On 14 May 2012 the Tribunal received correspondence from the representative advising she had not been able to contact the applicant for some months and had indirectly contacted the applicant's mother who advised that the applicant was in Thailand and did not provide her with any contact details. She also advised the Tribunal that emails sent to the applicant were bouncing back.
  10. On 17 April 2012 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 14 June 2012. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. As noted above, the Tribunal received advice from the representative that she had attempted to contact the applicant, without success. The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

FINDINGS AND REASONS

  1. The visa application was made on the basis that the applicant is the remaining relative of Ms Monthakarn Ekthammakun, who is the applicant’s parent. On the evidence before it, the Tribunal finds that Ms Monthakarn Ekthammakun is a settled Australian permanent resident who is usually resident in Australia. The Tribunal accepts on the evidence before it, that the applicant is the daughter of Ms Monthakarn Ekthammakun. The Tribunal is satisfied that the applicant meets r.1.15(1)(a).
  2. The applicant’s mother provided evidence of her permanent resident status and this is confirmed in the Department electronic movement records. The Tribunal is satisfied on the basis of the Department’s electronic movement records that she is usually resident in Australia. The Tribunal is satisfied that the applicant meets r.1.15(1)(b).
  3. The issue before the Tribunal is whether the applicant has any "near relatives".
  4. The primary decision was based on information given in writing with the application that the applicant’s father resided in Thailand and the delegate stated there was no evidence that he had been declared dead by a court.
  5. The Tribunal considered the evidence lodged with the application that the applicant’s father was residing in Thailand. The Tribunal also considered information provided in the applicant’s application for partner visas lodged in Australia and the applicant’s mother's application for an employer nomination scheme visa lodged in Australia which indicated the applicant’s father was alive and residing in Thailand. The Tribunal put this information to the applicant under s.359A of the Act. The Tribunal has considered the representative's response that she has not been able to contact the applicant. The Tribunal finds this response does not account for the evidence of the residence of the applicant’s father in Thailand. The applicant did not make any claim that her father was deceased or had not been in contact with him for a significant period of time which may have indicated he was no longer alive. On the basis of the information given in writing in this application, and evidence given in two other visa applications by the applicant and sponsor, the Tribunal finds that the applicant’s father is a near relative of the applicant residing in Thailand. As the applicant has a near relative who usually resides in Thailand, being her father, the Tribunal finds that the applicant cannot meet the requirements of r.1.15(1)(c)(i) and accordingly the Tribunal finds the applicant does not meet r.1.15(c).
  6. The Tribunal finds, accordingly, that the applicant does not satisfy cl.835.212 at the time of application. As the Tribunal has found the applicant cannot meet an essential criteria for the grant of the visa at the time of application, it does not need to make findings on whether the applicant meets the criteria at the time of decision.
  7. In respect of the other visa subclasses there is no material which suggests that the applicant meets prescribed criteria for the Class BU visas 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, nor 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.
  8. The Tribunal also finds that the applicant is not entitled to the grant of the Subclass 838 (Aged Dependent Relative) visa as there is no evidence before the Tribunal that the applicant is old enough to be granted an age pension under the Social Security Act 1991 and so the Tribunal is not satisfied that the applicant is the aged dependent relative of her mother, as required by cl.838.212.

CONCLUSIONS

  1. In light of the findings above, the applicant does not meet the requirements of the definition of remaining relative in r.1.15 at the time of application and therefore does not satisfy cl.835.212.
  2. In respect of the other visa subclasses and for the reasons set out above, there is no material which would permit a finding that the applicant meets prescribed criteria for the visas sought.

DECISION

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

Simon Jeans
Member

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