Australian Immigration Appeals: Family Visas 2010

Migration Review Tribunal Decision Summaries

Australian Immigration - Family Visas

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Remaining Relative Visas

0901603
21 July 2010, Melbourne
Ms D Hubble, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 115 – REMAINING RELATIVE – CL.115.211 – NEAR RELATIVES – A delegate of the Minister refused the visa application on the basis that the visa applicant did not satisfy cl.115.211 because he was not a ‘remaining relative’ of an Australian. The delegate noted that the visa applicant had five minor children to two wives, the children being residents of Somalia, and that the information provided indicated that the children were not under the applicant’s care, which meant that they were considered to be the applicant’s ‘near relatives’ for the purposes of the Regulations. The review applicant, who was the visa applicant’s mother, claimed that they did not know the whereabouts of the applicant’s first wife and their two children. There had been a civil war in Somalia at the time of their divorce and, despite searching, they had not succeeded in locating them. She claimed that the visa applicant’s second wife had died in 2007, although she did not know the cause of death. She also stated that the three children from this marriage were living with their grandmother in the country after they had moved to escape the civil war. The review applicant claimed that the grandmother had now gone into hiding, as she was fearful that the children would be taken away after learning that the review applicant had been looking for her in Somalia. Despite their best efforts, they had been unable to make contact. The review applicant claimed that the visa applicant had been living in South Africa since 2003 and that he did not have any documents with which to travel back to Somalia. It was claimed that the visa applicant was sending money whenever he could to the children through an intermediary but he had not seen them for seven years. The review applicant further submitted to the Tribunal that it was their intention to appeal to the Minister for intervention if their application was not successful.

Held: Decision under review affirmed.

The Tribunal accepted that, after the visa applicant’s divorce from his first wife, he had only limited contact with his two children from this marriage, and that he had had no contact with them for several years. The Tribunal further accepted the evidence that the grandmother had run away with the children after learning that the review applicant was in Somalia looking for them. The Tribunal, therefore, noted it would need to consider whether those children were wholly or substantially in the daily care and control of the visa applicant at the time that the visa application was lodged. The Tribunal accepted the evidence that the visa applicant provided some financial support for the children whenever he was able; however, there was no evidence to suggest that the grandmother consulted the visa applicant in relation to day-to-day issues concerning the children, or longer term issues such as their education. Given that the visa applicant and his children had been living in different countries since 2003, the Tribunal was of the view that the visa applicant had not had any input into such matters since that time. The Tribunal found that, at the time of application in 2008, the visa applicant had 5 children who had not turned 18 and who were not wholly or substantially in his daily care and control. Accordingly, at the time of application, the Tribunal found that these children were ‘near relatives’ of the visa applicant. Therefore, the Tribunal was not satisfied that, at the time of application, the visa applicant was the remaining relative of the review applicant. Therefore, the visa applicant did not satisfy cl.115.211. The Tribunal further considered the applicant’s case and the ministerial guidelines but decided not to refer the matter to the Minister.

0902186
19 July 2010, Sydney
Mr B MacCarthy, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 115 – REMAINING RELATIVE – CL.115.211 AND CL.115.221 – NEAR RELATIVES – A delegate of the Minister refused the visa applications on the basis that the first-named visa applicant did not satisfy cl.115.211 or cl.115.221, because the delegate was not satisfied that the first-named visa applicant was a ‘remaining relative’ as defined in the Regulations. The applicant claimed she was divorced and, apart from her two children who were parties to the application, all of her other family members were residents of Australia, including her parents, brother, and three sisters. The applicant submitted a number of documents, including a copy of court documents relating to her divorce from her former husband. She also submitted evidence that a court had awarded custody of her two children to her and had formally stated that she was “at liberty to take them out of Fiji”. In an interview with the Department, the applicant claimed that her husband had started spending time away from the family home and that when she enquired about his whereabouts he became abusive, which led to her deciding to live alone with her two children on a property owned by her parents. A subsequent site visit led to Departmental officers surmising that, based on information provided by her neighbours, it was clear that the applicant was still living with her divorced spouse. The applicant claimed that her former husband did not reside at the property after the separation, though he had gone there to see his children from time to time, and that the neighbours had seen him visiting the premises and wrongly concluded that he was residing there. She provided a number of statutory declarations and letters attesting to the circumstances of the marriage breakdown, as well as to the fact that they no longer lived together.

Held: Decision under review set aside.

The Tribunal did not consider it unreasonable that a woman separated from her husband might wait some two years before instituting divorce proceedings given that she was prepared to contemplate that there may be a reconciliation, and it drew no negative inference from this fact. The Tribunal accepted the documents which were submitted in support of her claims and, although it noted that those which specifically referred to the marital relationship came from relatives in Australia who might be said to have a vested interest in the outcome of the case, it also noted two letters from schools at which the applicant taught, and that the writers of these letters would have no such interest. The Tribunal further noted that none of the three neighbours mentioned in the Departmental report were named, and that it was plausible that these neighbours merely assumed that the applicant’s husband resided with her because they had seen him on occasions when he had visited the house to see his children. In the circumstances, the Tribunal decided not to give greater weight to the report quoting three unnamed neighbours as opposed to the written evidence submitted to the Tribunal and the oral evidence of the applicant. The Tribunal found that the applicant was not living with her former husband and, therefore, it found that she did not have a ‘spouse’ within the meaning of the term given in the regulations at the time of application, and that she did not have a ‘spouse’ now at the time of decision. The Tribunal accepted the evidence which indicated that all of the applicant’s siblings and both of her parents were Australian citizens who were usually resident in Australia; and that her only other close relatives were her two children who were both dependent upon her, and wholly or substantially in her daily care and control. For these reasons, the Tribunal found that the applicant had no ‘near relatives’ other than ‘near relatives’ who were usually resident in Australia and Australian citizens, and that the provisions for the granting of the visa were satisfied.

0807652
10 February 2010, Brisbane
Ms R Johnston, Member

OTHER FAMILY (RESIDENCE) (CLASS BU) – SUBCLASS 835 – (REMAINING RELATIVE) –CL.835.223 – PIC 4005 – HEALTH – A delegate of the Minister refused the applicant’s Subclass 835 visa application and found that the applicant did not satisfy the requirements of cl.835.223 because she failed to satisfy the health criteria (PIC 4005). The delegate made this finding on the basis of the opinion of the Medical Officer of the Commonwealth (MOC). The MOC found that the applicant was a person with intellectual impairment, a condition which would be likely to result in significant cost to the Australian community in the areas of health care and community services or that this may prejudice the access of Australian citizens or permanent residents to health care and community services. The Tribunal determined that the applicant was a vulnerable person and considered it appropriate to permit her sponsor, who is the applicant’s sister, to present oral evidence and arguments on behalf of the applicant. At the hearing, the Tribunal was told that the applicant had been intellectually impaired since birth, that her parents are deceased and that she resided with her mother in France until her mother’s death in June 2005, when the sponsor became the applicant’s legal guardian. The sponsor also submitted that the applicant had no close relatives living in Spain and that should the applicant be forced to depart Australia, it would have a detrimental effect on her, her husband and her children. It would mean that the sponsor’s family would have to be split up as she would need to accompany and reside with the applicant in Spain. She also stated that the applicant would not undertake further examinations by a medical professional or health organisation in relation to her current health status, but would be seeking Ministerial Intervention. A submission referring to the UN Convention on the Rights of Persons with Disabilities, which Australia ratified in July 2008, was included with the application for review.

Held: Decision under review affirmed

The Tribunal was bound as per the Regulations, to accept the final assessment of the MOC to be correct for the purposes of deciding whether the applicant satisfied the relevant health criterion. The Tribunal noted that it had written to the sponsor inviting the applicant to advise whether she wished to obtain a further medical opinion from an MOC and that the sponsor stated, both in writing and orally at the hearing, that the applicant did not wish to do so. The Tribunal declared that it was sympathetic to the applicant’s circumstances, given her intellectual disability and the fact that she had no living close relative other than the sponsor in Australia. The Tribunal noted that it is open to the Minister himself to substitute the Tribunal's decision for one more favourable to the applicant. Based on the opinion of the MOC, the Tribunal found that the applicant did not satisfy PIC 4005 and that the applicant did not meet the requirements of cl.835.223.

Orphan Relative Visas

1000335
7 July 2010, Sydney
Ms P Pope, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 117 – ORPHAN RELATIVE – CL.117.211 – UNLOCATABLE FATHER – A delegate of the Minister refused the applicant’s Subclass 117 visa application on the basis that the first named visa applicant did not satisfy cl.117.211 of the Regulations, as the delegate was not satisfied that attempts had been made to locate his father. The delegate was also not satisfied that the whereabouts of the visa applicant’s father were unknown. The visa applicant was a 17 year-old boy from the Philippines whose mother had passed away from cancer four years ago. He had been living with his maternal uncle and his wife who had been made his legal guardians by order of the Family Court. The review applicant was the visa applicant’s maternal aunt, and she claimed that the visa applicant’s father had abandoned him and his mother when the child was about three years of age. She claimed that the visa applicant’s father was a married man with a family and had entered into a relationship with the applicant’s mother, although he never left the family home, and that he did not contribute financially to the visa applicant, nor did he attend the visa applicant’s birth. The review applicant claimed that, to the best of her knowledge, the visa applicant’s father had visited him intermittently until he was aged about three. From that time there had been no contact. She claimed that efforts had been made by her family to locate the visa applicant’s father, including approaches to local officials and to the National Bureau of Investigation. The review applicant claimed that, after such a long time without contact, the family members had no wish to locate the applicant’s father. In any case, they were of the view that he had made the decision to continue his marriage and life with his family, which effectively meant he had no time for the review applicant’s sister and her child, and he had no spare money to assist them.

Held: Decision under review set aside.

The Tribunal accepted that the visa applicant had not turned 18 and, based on the evidence of the review applicant and the documentary evidence provided with the visa application, it accepted that the visa applicant was the nephew of the review applicant as claimed. The Tribunal was satisfied that the applicant’s mother had passed away and that she had never been married to the applicant’s father as he was already in a married relationship with seven children. The Tribunal accepted the review applicant’s evidence that the visa applicant’s father had not had contact with him since he was around three years of age, and that the review applicant and her siblings had been responsible for providing financial support, food, shelter and an education for the visa applicant for most of his life. The Tribunal sighted evidence of attempts made by the visa applicant’s family in the Philippines to locate the whereabouts of his father, including approaches to several local authorities in the area from whence he is believed to have come. Also, enquiries were undertaken through the National Bureau of Investigation in Manila. Based on the evidence, the Tribunal accepted that the whereabouts of the visa applicant’s father remains unknown. The Tribunal accepted that the visa applicant lived with his maternal uncle and aunt and that he was supported financially by the review applicant, despite her modest income. The Tribunal noted the evidence that the visa applicant was a good student who hoped to continue on to tertiary education, and it found that there was no compelling reason to believe that the grant of the visa would not be in his best interests. The Tribunal found that the visa applicant satisfied the requirement of cl.117.211 and that he was the orphan relative of the review applicant.

1000196
15 June 2010, Melbourne
Ms R Gagliardi, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 117 – ORPHAN RELATIVE – CL.117.211 AND CL.117.221 – ORPHAN RELATIVE OF AUSTRALIAN SPONSOR – A delegate of the Minister refused to grant the applicants orphan relative visas on the basis that there was uncertainty as to whether they were orphan relatives of the sponsor. The application was made on the basis that the five visa applicants were the children of the sponsor’s deceased brother and were therefore, his orphan relatives. A court document provided the dates of birth for each child and stated that the visa applicants’ parents had died in a car accident. Another document included the evidence of several witnesses confirming that the visa applicants’ guardian in Ethiopia had transferred responsibility for the children to their uncle as “she faced a great problem in means of subsistence…” A further court document confirmed the sibling relationship between the review applicant and the visa applicants’ father. Prior to the decision being made, negotiations were entered into between the Department and the review applicant and his representative in relation to whether it would be possible to have the applicants undertake DNA tests. The review applicant’s representative submitted that the review applicant did not have the resources to afford the costs that would be involved in DNA tests and that there was no reason in this case to doubt that the children were siblings, or that the review applicant was their uncle. The representative also referred to evidence provided which demonstrated that the sponsor had sent a considerable amount of money to the visa applicants and suggested that it would be unlikely that he would have done so if he were not a close relative. The children and spouse of the review applicant submitted statutory declarations in which they stated that they had seen the visa applicants when they travelled to Ethiopia and that the review applicant had sent money with them to assist the visa applicants with rent, food and clothing. Other statements attesting to the support provided by the review applicant to the visa applicants were also provided.

Held: Decision under review set aside.

Overall, the Tribunal found the witnesses, including the review applicant, to be entirely credible and did not find cause to doubt their claim that the review applicant is the brother of the deceased father of the visa applicants. The Tribunal accepted that birth and death certificates in countries like Ethiopia were more or less the registration of events as stated by those applying for the certificates. The Tribunal noted, however, that in this case it did not have any evidence to suggest that the information contained in the certificates was not genuine. In reaching its conclusions, the Tribunal took into account the evidence of the review applicants’ children that they had visited their cousins in Ethiopia to provide them with money and to check on their safety, as well as other third party statements attesting to the relationship between the review applicant and the visa applicants. The Tribunal accepted that the review applicant and his family were willing to take on financial responsibility for the well-being of the five visa applicants and that he wanted to adequately provide for them in the future. The Tribunal recognised that the review applicant had a family of his own and that to have all five visa applicants undergo DNA tests would have represented a significant impost on a family of modest means. Given that the Tribunal relied on the birth certificates provided as evidence showing that the review applicant was the sibling of the visa applicants’ deceased father, the Tribunal was also satisfied that the review applicant was an Australian relative of the visa applicants, being their uncle. The Tribunal was therefore satisfied that the visa applicants were all relatives of the review applicant and accordingly, it found that the visa applicants met the requirements of cl.117.211 and cl.117.221 of the Regulations.

0909791
19 May 2010, Perth
Ms L Ward, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 117 – ORPHAN RELATIVE – CL.117.211 – CL.117.221 – NOT AN ORPHAN RELATIVE OF THE REVIEW APPLICANT – A delegate of the Minister refused to grant the visa applicants a Subclass 117 (Orphan Relative) visas on the basis that they did not satisfy cl.117.211 of the Regulations as the delegate was not satisfied the visa applicants were the orphan relatives of the review applicant, that their mother had died or that their father was of unknown whereabouts. The review applicant claimed their father had been arrested and taken away by the Taliban, and that he had not been heard of since 2001. The three visa applicants all claimed to be brothers, and not to have turned 18 at the time of the application. The visa applicants claimed that their father was missing, their mother had died and that they had one other sibling, who was the review applicant. In an affidavit, the review applicant’s wife claimed that she had met the review applicant’s mother who had been unwell, and had subsequently died in hospital. The review applicant’s wife claimed she did not take part in the burial process as she was too distressed, but that she did attend the wake in her home after the burial and regularly visited her mother-in-law’s grave. She claimed that she looked after the visa applicants until she left for Australia, and that her neighbour subsequently cared for the visa applicants and that the review applicant sent her money to look after them. The applicants’ representative provided copies of death certificates which attested to the death of the applicants’ mother, and also submitted that the applicants’ father was listed as missing since his arrest and kidnap by the Taliban, and that he had not been heard of since, which meant that no death certificate was available. The applicants’ representative further submitted that the review applicant had attempted to obtain news of his father via the Red Cross, and that as their father had been missing for many years he was unable to care for his children.

Held: Decision under review set aside.

The Tribunal found that all of the visa applicants had not turned 18 at the date of the application, but that the review applicant had previously provided a different birth date for the third visa applicant which would have made him over 18 at that time. The Tribunal noted that a passport and statement issued by the Afghan Consulate had given a different date of birth, which would have made the applicant 17 years of age at the date of application. The Tribunal found this to be strong evidence of his actual birth date and preferred this evidence to the information provided by the review applicant. The Tribunal accepted that nine years had elapsed since the applicants’ father was last seen or heard of, and inferred from this that the visa applicants’ father had died in or about 2001. The Tribunal found that the father’s whereabouts was clearly unknown and he was likely unable to care for the visa applicants. The Tribunal accepted the documentary evidence that had been provided which indicated that the mother of the visa applicants had died. The Tribunal was therefore satisfied that the visa applicants could not be cared for by either of their parents, hence the visa applicants met the requirements of the Regulations. The Tribunal was satisfied that there was no compelling reason to believe the grant of a visa would not be in the best interests of the visa applicants. The Tribunal concluded that at the time of application the visa applicants were orphan relatives of the review applicant. Accordingly, the Tribunal found that the visa applicants satisfied cl.117.211 and cl.117.221 of the Regulations.

0804931
14 April 2010, Brisbane
Ms R Johnston, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 117 – ORPHAN RELATIVE – CL.117.211 – NO OFFICIAL DOCUMENTS – A delegate of the Minister refused to grant the applicants Child visas as he could not be satisfied that their parents were deceased and that they were orphans. The visa applications were accompanied by other material, including several supporting statements referring to the death of the visa applicants’ parents and an identity document. However, no official death certificates were provided. The applicants’ migration agent submitted that when dealing with clients from countries such as Afghanistan, official documents were likely to be less reliable than those obtained from non-official sources. The migration agent submitted that the statutory declarations provided attested to the death of the visa applicants’ parents and should be accepted as evidence that the visa applicants were orphans. At the Tribunal hearing, the review applicant confirmed that she was the sister of the visa applicants and that their parents were deceased. She claimed that she and her spouse had been providing financial support to the visa applicants and despite having an already large family she wanted the visa applicants to be with her in Australia. She also explained that the visa applicants’ sister-in-law, who had cared for them since the death of their mother, had since moved to Norway and was unable to continue caring for them. The Tribunal heard evidence from two witnesses who corroborated the review applicant’s claims and stated that the visa applicants’ two brothers who remained in Iran were unable to care for them. In a post hearing submission the applicants’ migration agent provided a statutory declaration describing a telephone conversation she had with the visa applicants’ brother in Norway during which he had indicated that he did not want the responsibility of caring for the visa applicants and that he had no objections to them travelling to Australia. A letter from the Senior Islamic Imam cleric of Quetta certifying the visa applicants had lost both parents was also provided to the Tribunal as evidence.

Held: Decision under review set aside

The Tribunal acknowledged the difficulties associated with obtaining ‘official documents’, such as birth and death certificates, in countries like Afghanistan and Pakistan to provide the level of evidence required by the Department to substantiate applicants’ claims. The Tribunal took the view that in such circumstances, alternative evidence may be accepted in lieu of official evidence. The Tribunal referred to the oral evidence of the review applicant and two witnesses, the statutory declarations provided, and a letter from the visa applicants’ school principal in Quetta and found that, in the absence of any evidence to the contrary, the parents of the visa applicants and the review applicant had died. The Tribunal noted that according to Hazara custom the eldest male relative in the family generally took responsibility for the guardianship of children when their father has died. It noted, however, that it would be difficult for the visa applicants to travel to Iran, where two of their elder male siblings are presumed to be living. It also accepted that the visa applicants’ brother in Norway had made it clear he was unwilling to care for the visa applicants. The Tribunal observed that many of the traditional Afghan support structures for families had broken down due to many years of war, displacement and other socio/political events. The Tribunal accepted the arguments made by the agent that migration to Australia would be in the best interests of the visa applicants who currently live alone and illegally in Quetta, Pakistan. The Tribunal found that the review applicant wanted to give her siblings the opportunity of a better life in Australia, where she and her family were settled. The Tribunal was satisfied that there was no compelling reason to believe that the grant of Subclass 117 visas would not be in the best interests of the visa applicants. Accordingly, the Tribunal found that the visa applicants satisfied the requirements of cl.117.211 and cl.117.221 of the Regulations.

0906128
6 January 2010, Sydney
Mr D O’Brien, Principal Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 117 (ORPHAN RELATIVE) – CL.117.211 – A delegate of the Minister refused the applicant’s Subclass 117 visa application on the basis that the visa applicant did not satisfy cl.117.211 of the Regulations. The review applicant is the grandmother of the visa applicant, who is a citizen of the Philippines and was 15 years old at the time of the visa application. The review applicant stated that her daughter, the visa applicant’s mother, died from cancer in 1997 and that after her mother’s death, the visa applicant was cared for initially by the review applicant when she was living in the Philippines. The visa applicant now lives with her uncle. The Tribunal was told that the visa applicant is an only child, and that a statutory declaration from her father had been provided to the Department stating that he had given full authority to the review applicant to take care of the visa applicant, and that he had since remarried and had five children with his second wife. The review applicant stated that the visa applicant’s father had an addiction to drugs and alcohol which had started before her daughter died. The review applicant claimed that before her daughter died, she had asked her to look after the visa applicant. She stated that she supplied all of the visa applicant’s material needs and that, in hindsight, she might have applied to adopt the visa applicant but this tended not to be done in the Philippines. The review applicant provided a number of submissions to the Tribunal, including a statutory declaration from the mother of the visa applicant’s father which stated that her son was bipolar, was addicted to drugs and alcohol before his wife’s death, and that he had physically abused her. Also supplied to the Tribunal was a doctor’s report relating to the visa applicant’s father which stated that he was addicted to methamphetamines and alcohol, that he was irritable and aggressive and at times physically violent when his needs were not met. It further stated that his children with his current partner were now being cared for by his in-laws. The visa applicant’s father also stated that he did not want anything to do with his daughter.

Held: Decision under review set aside.

The Tribunal found that the review applicant was the visa applicant’s grandmother and was a settled Australian citizen, and that the visa applicant had not turned 18 at the time of application, was under 18 at the time of the Tribunal’s decision and did not have a spouse. The Tribunal was satisfied, on the basis of the death certificate supplied in relation to the visa applicant’s mother and other evidence before the Tribunal, that the visa applicant’s mother was deceased and that the visa applicant could not therefore be cared for by her. The Tribunal also reached the view that the visa applicant could not be cared for by her father because he was permanently incapacitated. While the Tribunal accepted that the abandonment of care for his daughter by the visa applicant’s father did not amount to permanent incapacity, the doctor’s report which stated that he was psychologically incapacitated indicated that his mental faculties were impaired such that he could not care for the visa applicant. The Tribunal was satisfied that the incapacity was permanent because the evidence of the review applicant and that of the visa applicant’s paternal grandmother was that his incapacity had continued for many years. The Tribunal found that his impairment amounted to permanent incapacity such that he could not care for the visa applicant. The Tribunal accepted that, under the circumstances where the visa applicant’s father had abandoned care of her, the best interests of the visa applicant would be served by the grant of the visa. The Tribunal therefore found that the visa applicant was an orphan relative of the review applicant within the meaning of r.1.14 and, therefore, she met cl.117.211

Carer Visas

0901145
4 May 2010, Sydney
Ms J Marquard, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 116 – CARER – CL.116.211 – CL.116.221 – R.1.15AA(1)(c) – SUBSTANTIAL AND CONTINUING ASSISTANCE – A delegate of the Minister refused to grant the applicant a Subclass 116 (Carer) visa on the basis that the visa applicant did not meet cl.116.211 and cl.116.221 of the Regulations, because the delegate was not satisfied the visa applicant was willing and able to provide substantial and continuing assistance to the review applicant. A Health Services Australia Carer Visa Assessment stated that the review applicant met the requirements for a carer according to her total impairment rating. The Certificate confirmed a medical condition which impaired the review applicant’s daily life and would continue for at least two years, and that she needed assistance for practical aspects of daily life. An accompanying report stated that she had significant heart disease with signs of cardiac failure, and a cardiologist report stated she was diagnosed with coronary artery disease and was at risk of acute myocardial infarction and sudden death. The report claimed that it would be safer for the applicant to have her son with her to keep an eye on her. The visa applicant claimed that he would provide 24 hour assistance and be able to look after the review applicant’s daily necessities such as food, cleaning, shopping and washing, and that he would be able to assist her to move around as she had limited mobility. The review applicant claimed that she had a friend who visited and helped her but that she could not provide all the necessary assistance as she lived far away and had a family. The review applicant claimed she found it hard to cope and would not be able to make a telephone call if she had a heart attack, and that she could not speak English and did not know anyone else who could assist her. She claimed she paid for someone to translate her letters and that she had no money for community or nursing services. The visa applicant claimed that he did not have formal medical training but that he had knowledge of first aid and CPR and would update his knowledge through first aid courses.

Held: Decision under review set aside.

The Tribunal found the Health Services Australia Carer Visa Assessment and impairment rating met the requirements of r.1.15AA(1)(c). The Tribunal accepted that the review applicant had no other relatives in Australia and that she required 24 hour assistance which was difficult to obtain from welfare or community services without finances. The Tribunal also accepted that the review applicant had a language barrier and that she could not obtain assistance from other sources. The Tribunal accepted the visa applicant would not work and that money saved along with his wife’s income would provide for the family. The Tribunal further accepted that he had no medical training but had done first aid and was prepared to undertake further courses, and that he was able to assist with washing, cooking and daily chores and would drive the review applicant to hospital or medical appointments. The Tribunal found that the assistance would also be a physical presence for the review applicant in emergencies and when she was unwell. The Tribunal was satisfied the visa applicant’s wife would work and the visa applicant was willing and able to provide the required assistance for the duration of the sponsor’s illness. Accordingly, the Tribunal found the assistance was of the kind needed and that the visa applicant met the requirements of the Regulations for the grant of a Subclass 116 (Carer) visa.

0908915
18 December 2009, Melbourne
Ms M Urquhart, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 116 (CARER) – A delegate of the Minister refused the applicant’s Subclass 116 visa on the basis that the visa applicant did not satisfy cl.116.211 and cl.116.221 of the Regulations, as the delegate found that the review applicant’s care needs were already being met by other family members. The delegate also had concerns about the visa applicant’s willingness to be a carer. The visa applicant is the daughter of the review applicant who is of Vietnamese ethnicity. The review applicant claimed to have a permanent or long-term need for assistance and provided a number of documents in support of the application. These included a Certificate of Carer Visa Assessment indicating the review applicant had an impairment rating of 30; a Medical Advisor’s report indicating multiple medical conditions, including hypertension and diabetes complicated by strokes, osteoarthritis and severe asthma; a letter from a hospital social worker indicating the review applicant’s needs after a recent stroke, making specific reference to the need to care for the review applicant outside of an institution as it would not be culturally appropriate to care for her in such a facility given that she did not speak English. Also provided was a statutory declaration and written statements by the review applicant and other family members indicating their unwillingness and inability to care for her; a statement by the visa applicant indicating her understanding of the review applicant’s needs and her willingness to perform the duties of a carer as she has done in the past; and a letter from a Health Care Centre indicating that the review applicant requires 24 hour care.

Held: Decision under review set aside.

The Tribunal made a decision on the information before it, along with the evidence on the Department’s file, without the need for a hearing. The Tribunal accepted that the visa applicant was the daughter of the review applicant and accordingly found that the visa applicant was a ‘relative’ within the meaning of r.1.03. The Tribunal found that the rating of 30 as stated in the Certificate of Carer visa assessment exceeded the impairment rating specified by the Gazette Notice and therefore met the requirements of r.1.15AA(1)(c). The Tribunal noted that it must consider whether the assistance the review applicant required could not reasonably be obtained from the review applicant’s relatives who are resident in Australia. The Tribunal accepted that these relatives were occupied with their own lives and needs and that the requisite care could not reasonably be obtained from them and that this was affirmed by the relatives themselves in written statements provided to the Tribunal. The Tribunal noted the correspondence from the hospital social worker in relation to whether assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia, and found that the review applicant required round the clock care which could not be given in aged care facilities as to do so would be culturally inappropriate. The Tribunal stated that the main issue in this case was whether the visa applicant was willing and able to provide the review applicant with substantial and continuing assistance of the kind outlined in the Carer’s Assessment Certificate. It found that the visa applicant had previously cared for the review applicant and had a good knowledge about the review applicant’s medical conditions and of the level of care required, and noted that the visa applicant had stated that she was willing and able to meet those needs. The Tribunal concluded that, at the time of decision, the visa applicant met the requirements of a carer for the review applicant and therefore satisfied cl.116.221 of the Regulations.

Aged Dependent Relative Visas

0807821
31 March 2010, Sydney
Ms C Carney, Member

OTHER FAMILY (MIGRANT) (CLASS BO) – SUBCLASS 114 – AGED DEPENDENT RELATIVE – R.1.05(1)(a)(i) – DEFINITION OF AGED DEPENDENT RELATIVE – A delegate of the Minister refused to grant the applicant an Aged Dependent Relative visa on the basis that the delegate found that the visa applicant was not dependent upon the sponsor, her son (the review applicant). The review applicant claimed that the visa applicant travelled to Australia in 2004 after his father passed away and that he supported her during this stay. She stayed for a year before returning to Egypt but when the visa applicant visited Australia again, she was unable to fly back due to her blood pressure and the review applicant decided it would be better for her to stay permanently in Australia so he applied for her to stay. However, this application was rejected so the visa applicant returned to Egypt. The review applicant claimed that the visa applicant receives 450LE (Livre Egyptienne) a month pension from the Egyptian government and that food costs around 30-40LE per day. He stated that her other costs were clothing, medication, transport, phone and utilities. The review applicant stated that he has been sending funds regularly to the visa applicant since 2002. Evidence of funds transferred in 2002 and 2003 were provided. The review applicant claimed that the delegate had refused the application as he mistakenly thought the visa applicant was receiving a pension of 800LE per month but since his father had passed away his mother only received 450LE and this was not enough for her to live on. The review applicant also advised that the visa applicant has two shops. Since her husband’s death, the store they owned had been closed as she was not able to run it by herself. They pay 85LE a month to rent it out and they paid rent upfront and are obligated to continue to pay rent. In order to utilise these assets, his siblings would have to go back to Egypt to organise things and this would take time. He stated that they were waiting for their mother to come to Australia and they would then go back and sell everything. He stated that the shop was only worth about 15,000 to 20,000 Egyptian dollars. The review applicant advised that the visa applicant lives in a rent controlled unit in Alexandria. The visa applicant advised she was now getting a pension of around 600LE per month from which she pays for rent, water, electricity but it is not enough for her medical treatment as she has no health insurance.

Held: Decision under review affirmed.

The Tribunal considered whether the visa applicant was dependent upon the review applicant for her basic needs for food, clothing and shelter for a reasonable period of time prior to the date of her application. The Tribunal accepted the evidence of both the review and visa applicants that the visa applicant lived in a rent controlled apartment in Alexandria for which she pays a small amount of rent from her pension and she has a further apartment, which she resides in when she is in Cairo. Accordingly, the Tribunal found that the visa applicant was not dependent on the review applicant for her shelter. In relation to her expenses, the Tribunal accepted that the visa applicant was in receipt of a pension and also that she received funds from her two sons. Based on independent country information, the Tribunal did not accept the estimation provided of the visa applicant’s basic needs as a true representation of what she actually spends on her basic needs. The Tribunal accepted that the money the applicant received from her sons was used for medication and expenses such as helping with her shopping and to make her life more comfortable. However, the Tribunal came to the conclusion that money sent in 2002 and 2003 was for the review applicant’s father’s medical expenses as no further money was sent to the visa applicant following her husband’s death in 2004 until August 2007. The Tribunal advised the review applicant during the hearing that only his contributions could be assessed as he was the sponsor. The Tribunal was not satisfied that the review applicant had provided financial support to the visa applicant for food and clothing or for her other rental costs for a reasonable period prior to the date of application. The Tribunal found that the visa applicant did not meet the definition of ‘aged dependent relative’ and that the visa applicant was not the ‘aged dependent relative’ of the review applicant. Accordingly, the Tribunal found that the visa applicant did not meet cl.114.211 of the Regulations and the decision to refuse the grant of the visa was affirmed.

0804423
3 March 2010, Melbourne
Ms S Muling, Member

OTHER FAMILY (MIGRANT) – (CLASS BO) – SUBCLASS 115 – REMAINING RELATIVE – R.1.15(2) – AUTHENTICITY OF DOCUMENTS – A delegate of the Minister refused to grant the applicant a Subclass 155 visa on the basis that the delegate could not be satisfied that certain family members were in fact deceased. The visa applicant applied for a Remaining Relative visa in 2006. He indicated on the application form that he was born in 1981 in Ghazni Province in Afghanistan. He claimed his parents and two brothers were deceased and he had one brother, the review applicant, residing in Australia. In 2008, the Department wrote to the visa applicant advising that the Embassy of the Islamic Republic of Afghanistan in Islamabad had advised that the death attestations issued by the Ministry of Foreign Affairs in Kabul were not genuine. The review applicant’s migration agent wrote to the Department outlining the process which the visa applicant went through in obtaining the death attestations and registering them with the Afghanistan Consulate in Quetta. It was submitted that the review applicant believed the officer who stamped and signed the documents failed to enter them on the Consulate register and this was why they were considered to be fakes. The agent contended that the visa applicant and review applicant were innocent victims of the inefficiency and/or fraud practised by officials in the Afghanistan Consulate in Quetta. Along with the review application, the review applicant provided certified copies of new death certificates issued by the new Consul at the Afghanistan Consulate in Quetta dated in May 2008. The new certificates were purportedly based on the certificates previously obtained from within Afghanistan and countersigned by the Ministry of Foreign Affairs in November 2007 and which were provided to the Department. Also attached to the DFAT response was a letter from the Embassy of the Islamic Republic of Afghanistan, Islamabad, to the Australian High Commission, Islamabad, dated 7 January 2010 which confirmed that the Consulate General of Islamic Republic of Afghanistan in Quetta had informed the Embassy that the death certificates were confirmed as genuine and were attested on the basis of documents from a court of Afghanistan provided by the applicants.

Held: Decision under review set aside.

The Tribunal assessed all the evidence that was provided by the visa and review applicants in relation to their claim that the visa applicant’s parents and two brothers were deceased and therefore the visa applicant does not have any near relatives residing outside Australia. The Tribunal noted the concerns of the delegate regarding the visa applicant’s evidence as to when his mother and brothers died. The Tribunal also considered the advice received from Afghan officials regarding the veracity of some of the documentary evidence provided to substantiate the claims that the visa applicant’s parents and two brothers were deceased. However, based on the most recent advice received from the Embassy of Islamic Republic of Afghanistan in Islamabad, which confirms that the death certificates presented to the Consulate General in Quetta were verified as genuine and were attested on the basis of court documents from a court of Afghanistan, the Tribunal found that the death attestations dated 20 May 2008 are, in fact, authentic and that the visa applicant’s parents and brothers are deceased. On the basis of these findings, the Tribunal found that the applicant has no ‘near relatives’ as defined in r.1.15(2) other than those that are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens and thus meet the requirements of r.1.15(1)(c). Accordingly, the Tribunal found that the applicant met the requirements of cl.155.211and 155.221 of the Regulations.

0806654
31 December 2009, Melbourne
Ms W Boddison, Member

AGED PARENT (RESIDENCE) (CLASS BP) – SUBCLASS 804 (AGED PARENT) – CL.804.255 – PUBLIC INTEREST CRITERION 4005 – A delegate of the Minister refused to grant the applicant a Subclass 804 visa on the basis that the visa applicant did not satisfy the health criteria in Public Interest Criterion (PIC) 4005 of the Regulations. A Medical Officer of the Commonwealth (MOC) noted that the applicant was blind from advanced bilateral macular degeneration and was frail aged. The MOC’s opinion was that the applicant’s condition would require continued assisted health care and community services as he was incapable of independent living, and that the provision of community services and health care would result in a significant cost to the community. The applicant’s representative provided a submission which claimed that the applicant’s son in Australia was the only person who could care for the applicant and that their home was modified to support the physical needs of the applicant, who was confined to a wheelchair. The submission claimed it was unlikely that health care or community services would be used as the applicant’s family would provide the care and support needed. The submission also claimed that the applicant had a substantial amount of money in the bank, that he received a United States (US) government pension and was covered by private health insurance. The submission further claimed that the applicant was unable to travel alone as he was blind and confined to a wheelchair. The submission claimed that if the applicant left Australia he would be confined to a nursing home and would have no contact with family members. Supporting statements from the applicant’s family were also provided. A letter from the applicant’s treating doctor stated that to return the applicant to the US after living in a family environment in Australia would sentence him to an intolerably lonely nursing home existence which would shorten his life expectancy considerably.

Held: Decision under review affirmed.

The Tribunal was bound to accept the MOC’s assessment that the applicant did not meet the requirements of PIC 4005 on which the visa refusal was based. The Tribunal contacted the applicant’s representative to ascertain whether the applicant intended to obtain a further opinion from the MOC. No information or comments were received and no extension was sought within the prescribed period, and the applicant did not appear before the Tribunal. The Tribunal was satisfied that the MOC had applied the correct test in this matter to ascertain the form or level of the condition suffered by the applicant, and then applied the statutory criteria by reference to a hypothetical person who suffered from that form or level of the condition. Based on the opinion of the MOC, the Tribunal found that the applicant did not satisfy public interest criterion 4005. As there was no provision for the waiver of criterion 4005, cl.804.225 could not be satisfied. The Tribunal had regard to the applicant’s circumstances, particularly his age and degree of infirmity, and noted that he could not live independently and that he had been cared for by his family in Australia. It also noted that his doctor had indicated that he would be unable to travel to the US. The Tribunal therefore referred this case to the Department for the Minister’s attention. Accordingly, the Tribunal found the visa applicant did not meet criterion 4005 and therefore, the applicant did not satisfy cl.804.225 of the Regulations.

Child Visas

0907967
19 May 2010, Melbourne
Ms M Cameron, Member

CHILD (RESIDENCE) (CLASS BT) – SUBCLASS 802 – CL.802.212 – CL.802.221 – DEPENDENT CHILD – COMPELLING AND COMPASSIONATE CIRCUMSTANCES – A delegate of the Minister refused to grant the applicant a Subclass 802 visa on the basis that the visa applicant did not satisfy cl.802.212 and cl.802.221 of the Regulations because the delegate was not satisfied that the applicant was a dependent child of the sponsor. A medical report indicated that the sponsor had a number of medical conditions and the visa applicant assisted her with all aspects of her daily living, such as personal hygiene, dressing, cooking, cleaning and mobility. The report suggested that the applicant should continue as the sponsor’s carer as an alternative to nursing home care, which was inevitable if the applicant could not care for her. The visa applicant claimed she was not the child of, or related to the sponsor, and was aware she did not satisfy the key criteria for the visa, but wished to provide evidence with a view to appealing to the Minister. She claimed she came to Australia to care for the sponsor because the sponsor’s family was unable to provide care. She claimed that she had lived with the sponsor overseas, and then in Australia, and considered herself a part of the family. The sponsor claimed that the visa applicant did everything for her, and that she could not manage without the applicant’s help. The sponsor claimed that she lived with her family members who were unable to assist as they were ill or rarely at home, and she did not receive assistance or services from the community. The sponsor’s granddaughter claimed that the applicant was part of the family, and that as the sponsor did not speak English she needed someone to care for her who could speak her language. She claimed that for personal, language, cultural and medical reasons the sponsor could not be placed in a nursing home as she would not cope. The sponsor’s daughter claimed that the sponsor needed help as her family situation was very difficult due to her illness, and that if she put her mother into a nursing home she would die. The applicant’s representative claimed that her circumstances were unique and exceptional because she had been part of the family for an extensive period and had an emotional attachment to them. He claimed there was a public policy consideration that, without the applicant’s assistance, the sponsor would be prematurely institutionalized and this would have a financial cost as well as loss of dignity for the sponsor. He further claimed that there were no nursing homes where the sponsor could communicate effectively, and that there were compelling and compassionate circumstances which would lead to the sponsor’s family suffering prejudice and hardship if the applicant was not able to remain in Australia.

Held: Decision under review affirmed.

The Tribunal found that the visa applicant did not meet the requirements of the Regulations as she was not the dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen. It further found that she had turned twenty five and she was not incapacitated within the meaning of reg.1.03. She therefore could not meet the requirements of cl.802.212 or cl.802.221 of the Regulations. The Tribunal noted that is did not have the ability to waive the criteria for the grant of the visa. The Tribunal noted the sponsor’s family was clearly motivated by their concern for the care and wellbeing of the sponsor, and that the sponsor was elderly, physically frail and required care. However, it found that this was outside the Tribunal’s jurisdiction as the discretion could only be exercised by the Minister. Accordingly, the visa applicant did not satisfy cl.802.212 and cl.802.221 of the Regulations for the grant of a Child (Residence) (Class BT) visa.

0907831
15 April 2010, Sydney
Ms S Durvasula, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 102 – ADOPTION – CL.102.211 – RESIDENCE OVERSEAS CONTRIVED TO CIRCUMVENT ENTRY REQUIREMENTS – A delegate of the Minister refused to grant the applicant a child visa on the basis that the visa applicant did not satisfy clause 102.211 of the Regulations. The delegate was not satisfied that the adoptive mother’s residence overseas was not contrived to circumvent the requirements for entry to Australia of children for adoption. The review applicant’s wife advised the Department that she had departed Australia to adopt a child from Sri Lanka because she and her husband had found it too difficult to adopt in Australia. She stated that they had been told there was a long waiting list and they preferred to adopt a child from overseas as it would take less time. In a written submission to the Tribunal, the review applicant advised that he and his wife had contacted several agencies and were told that although they would be able to adopt a child here, the natural parent could take the child away. The review applicant appeared at the Tribunal hearing to give evidence and present arguments. The review applicant advised that his wife had travelled to Sri Lanka solely for the purpose of adopting the child as his sister in Sri Lanka had found a child from a poor family whose parents agreed to the adoption. The review applicant also confirmed that he and his wife adopted the child when his wife was a permanent resident of Australia and he was a citizen. In support of the application, the review applicant provided a copy of the adoption certificate and a letter from his lawyer stating that the adoption had taken place.

Held: Decision under review affirmed

The Tribunal accepted that the applicant was adopted overseas by an Australian permanent resident. The Tribunal also found that the review applicant’s wife had been residing overseas for more than 12 months at the time of the visa application and that the visa applicant therefore met paragraphs 102.211(2)(a) and (b). The Tribunal accepted, based on the evidence provided by the review applicant and his wife, that they had approached an adoption agency in Australia and did not wish to proceed with the Australian requirements for adoption as they believed the waiting list was too long and they were under the impression that the natural parents would be able to see the child at any time. The Tribunal found, however, that the visa applicant was not adopted in accordance with the Adoption Convention in an Adoption Convention country and, therefore, he did not meet subclause 102.211(5). Furthermore, the Tribunal found that the sole purpose of the review applicant’s wife’s travel to Sri Lanka and residence there was to adopt a child. The Tribunal accepted that the review applicant and his wife had the best of intentions in adopting a child overseas but found that the review applicant’s wife established residence in Sri Lanka and adopted a child there in order to get around or avoid the Australian state and territory requirements for prospective adoptive parents. The Tribunal was therefore not satisfied that the residence overseas by one of the adoptive parents was not contrived to circumvent the requirements for entry to Australia of children for adoption. Accordingly, the Tribunal found that the visa applicant did not meet paragraph 102.211(1)(c) and failed to meet subclause 102.211(2). As the visa applicant did not meet any of the subclauses in clause 102.211 the Tribunal affirmed the decision under review.

0905722
15 December 2009, Sydney
Ms P Pope, Member

CHILD (MIGRANT) (CLASS AH) – SUBCLASS 101 (CHILD) – R.1.04 – ADOPTIVE CHILD – A delegate of the Minister refused the applicant’s Subclass 101 visa application on the basis that the visa applicant had been formally adopted by her paternal uncle, and that under Australian law a child could not be both a natural child and an adopted child. The delegate found that since the review applicant (the visa applicant’s natural mother) did not have legal custody over the applicant, the applicant could not be considered as her dependent child or a member of her family unit. The review applicant claimed that she cared for her baby for the first nine months of her life and then she had to return to work, and that she returned to her village when her daughter was aged about five. She claimed that her brother adopted the visa applicant according to Hindu religious tradition in 1993 and that she was formally adopted in 1999. In connection with the formal adoption by the adoptive parents, the review applicant claimed that she and two witnesses attended the local District Court, after which a birth certificate was issued to the child showing her adoptive parents as her parents. The Tribunal heard that the visa applicant, along with her grandfather, visited the review applicant and her husband in Australia in 2008, and that a short time after she returned to Bali she rang them and told them that she wanted to come to live with them. The review applicant claimed that the visa applicant had instigated the visa application and process. She claimed that the visa applicant referred to her adoptive parents as her dad and mum but she knew that the review applicant was her biological mother. After the hearing the Tribunal received the English translation of the Order from the District Court in relation to the adoption of the visa applicant by her paternal uncle and his wife, as well as a copy of unsigned statements made by the adoptive father and his wife giving consent for the visa applicant to live permanently with her biological mother in Australia.

Held: Decision under review set aside.

The Tribunal noted that under Australian law, blood and formal adoptive relationships were mutually exclusive; so that the person who was formally adopted became the legal child of the adopting parents and a legal member of the adopting family. The Tribunal further noted that the adopted child ceased to be regarded in law as the child of the birth parents and the birth parents ceased to be regarded in law as the parents of the adopted child. The issue in this case was whether this position was the same for migration purposes, and, additionally, where the adoption was made under foreign adoption laws. The Tribunal found that there was some judicial support for the position that an adoption may not sever the biological relationships between relatives for the purposes of the Migration Act. The Tribunal noted that in Liang v MIAC, in the context of determining whether two people were “first cousins” for the purposes of item 1128BA(3)(1)(iii)(E) of the Regulations, the Court found that a biological relationship between two relatives existed despite the adoption of the applicant’s mother as a child, and that read in context, the Court found this provision was to be given a broad construction such that it included first cousins whether by biology, adoption or marriage. The Tribunal found that, having regard to the reasoning in Liang, it was open, depending on its factual findings, for the Tribunal to find that the applicant was the natural child of the sponsor, notwithstanding the adoption. The Tribunal noted that r.1.14A now provides that if a child has been adopted under formal adoption arrangements mentioned in r.1.04(1)(a) or (b), the child was taken to be the child of the adoptive parents and not of any other person, but that this only applied to applications made on or after 1 July 2009. The Tribunal stated that it was mindful that Departmental Procedural Advice, as it stood at the time the visa application was made in March 2009, stated that blood and formal adoptive relationships were mutually exclusive, and that this position was reinforced from 1 July 2009 in the provisions of r.1.14A. However, having regard to the reasoning in Liang, the Tribunal formed the view that it was open to it, based on the evidence, to find that the visa applicant was the natural child of the sponsor, notwithstanding the adoption. Therefore, the Tribunal found that the visa applicant satisfied cl.101.211 of the Regulations.

New Zeland Citezen Family Visa

0806271
25 January 2010, Sydney
Ms C Carney-Orsborn, Member

NEW ZEALAND CITIZEN FAMILY RELATIONSHIP (TEMPORARY) (CLASS UP) – SUBCLASS 461 – CL.461.212 & 461.221 – R.1.12 – A delegate of the Minister refused the applicant’s Subclass 461 visa application as she was not satisfied that the applicant’s relationship with his partner was genuine or that a mutual commitment existed between them. The applicant was granted a five-year New Zealand Citizen Family Relationship (Temporary) Class UP visa in 2003 on the basis of being a member of the family unit of Ms Joanne Casci, his partner, and in 2008 the applicant lodged his application for the visa currently under review. The delegate wrote to the applicant requesting him to provide additional documents, including evidence of his relationship with Ms Casci, however, he failed to do so. Accordingly, the delegate refused to grant the visa to the applicant as she was not satisfied that he was a member of the family unit of Ms Casci. Subsequently, the applicant presented his payslip, a copy of the Rental Bond Lodgement in joint names and rent review advice, a certificate of registration of motor vehicle in Ms Casci’s name, his Income Tax Assessment and various documents in joint names showing accounts and receipts for services to them at the same addresses. Also included were copies of passports of the two children of the relationship and a copy of Ms Casci’s passport. The applicant claimed before the Tribunal that they first met overseas in 1998 and that they had been together from that time. Also provided was evidence of their children’s births in Australia in 2003 and 2004. The applicant and Ms Casci also gave evidence to the Tribunal that was independent and corroborated by each other in relation to their living arrangements, financial circumstances, their joint business and they described their daily activities as well as the plans they have made for their and their children’s future.

Held: Decision under review set aside.

The Tribunal considered whether the applicant was a member of the family unit of Ms Casci. The Tribunal noted that little evidence had been provided to the delegate with respect to the applicant’s relationship with Ms Casci, however, considerably more evidence had been provided to the Tribunal. The Tribunal found that the parties’ evidence at hearing regarding the nature of their relationship and their living arrangements was consistent and that they were credible witnesses whose evidence the Tribunal accepted. The Tribunal also accepted that the parties had resided together since 1998 and that they re-located to Australia soon after this and that they had established a commitment to a spousal relationship. The Tribunal further accepted on the basis of their oral evidence and the photographic evidence before it that they socialised together as a couple and that their relationship was known to others. The Tribunal found that they viewed the relationship as a long term one and it was satisfied that, at the time of the application, the couple were in a de facto relationship. Therefore, the Tribunal was satisfied that the applicant was the spouse of Ms Casci and therefore, he was a member of her family unit within the meaning of r. 1.12(1)(a). Further, the Tribunal was satisfied that the applicant continued to be the spouse of Ms Casci at the time of decision and that she continued to be the holder of a Subclass 444 visa. Therefore, the Tribunal was satisfied that at the time of decision, the applicant met cl.461.221 of the Regulations.

Migration Review Tribunal Decision Summaries

Australian Immigration - Family Visas

Sponsored Family Visitor Visas

Remaining Relative Visas

Orphan Relative Visas

Carer Visas

Aged Dependent Relative Visas

Child Visas

New Zeland Citezen Family Visa

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