Issa, Wadad [2003] MRTA 7359 (29 October 2003)

CATCHWORDS: Review of visa refusal - subclass 115 (Remaining Relative) - contact with overseas near relative

DECISION: The Tribunal remits the application made by the visa applicant for an Other Family (Migrant) (Class BO) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets the following criteria for a subclass 115 (Remaining Relative) visa:

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Miss Nadia BAHUTH (the visa applicant), a national of Lebanon born on 19 October 1943, applied for an Other Family (Migrant) (Class BO) visa on 11 December 2001 (D1 f34). The delegate's decision to refuse to grant the visa was made on 15 December 2002 (D1 f40).

2. Mrs Wadad ISSA (the review applicant), the sister of the visa applicant, lodged a valid application for review with the Tribunal on 10 February 2003 (T1 f11). The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The criteria and policy immediately relevant to this review are:

Part 115 of Schedule 2 to the Regulations

Regulation 1.15 - definition of `remaining relative'

Regulation 1.03 - definition of `relative'.

Procedures Advice Manual 3 (PAM3): Interpretation of `remaining relative'

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

D1 - Departmental case file 2001020324, folio numbered 1- 48.

8. The visa applicant applied for a subclass 115 visa at the Australian Consulate General in Dubai, having been sponsored by her sister, Wadad Bahuth ISSA (the review applicant) for a migrant entry into Australia. The review applicant was granted Australian citizenship on 5 April 1989 (D1 f2).

9. It is noted that the visa applicant was previously the holder of subclass 105 (Skilled) visa, which appears to have been granted to her in 1991 (T1 f20). It is claimed that the visa applicant could not migrate at that time due to family reasons in her home country (D1 f4a).

10. The visa applicant was interviewed on 27 May 2002 (D1 f36). During the interview, she stated that she is in contact with her USA based brother, but only occasionally as he is married and travels a lot. She stated that she calls him from time to time and sends him emails. She stated that the last time she spoke to him was when she called him to ask for a copy of his passport which she included with her application (D1 f35).

11. The delegate refused the application on the basis that the visa applicant was disqualified from being a remaining relative as she was not able to meet the requirements of regulation 1.15 (1). The delegate found that the visa applicant has been in regular contact with an overseas near relative during a reasonable period of time preceding the application (D1 f39).

12. The review applicant applied for a review to the Tribunal on 10 February 2003, stating that:

"The `contact' that was the base for the refusal of granting the visa was instances of contact through the period of our mother's battle with cancer and subsequently her death three months preceding the application. It was unavoidable contact for medical, legal and family duty reasons and not for social reasons" (T1 f7).

13. The review applicant provided a statement, dated 4 February 2003 (T1 f13) in which she stated that she wished to clarify the nature of the contact that took place between the visa applicant and their USA based brother, Saba. She stated that Saba left Lebanon in 1976 to work in the United Arab Emirates, away from the civil war in Lebanon. Saba married and immigrated directly from the UAE to the USA in 1985. He has resided in the USA for the past thirteen years. The review applicant stated that, "the lack of contact during the war, the different ways of seeing life and dealing with its problems in different cultures and the extremely responsible busy life that both Saba and (the visa applicant led), resulted in abolishing all kinds of social contact between them". She stated that for the last thirty-five years, the visa applicant had been working full time in at the hospital where their mother was being treated for cancer. The visa applicant was the only relative taking care of their mother. Their mother died in September 2001 and the visa applicant's application was made three months later, in December 2001. The review applicant stated that the contact between the visa applicant and her brother preceding the application "resulted from the necessity of enquiring and reporting on the health status of our mother". She stated that the visa applicant was the only one who could report to herself and to Saba, on their mother's treatment, progress, subsequent death and funeral arrangements. The review applicant stated that "there was no motivation or place for social contact. It was unavoidable contact for medical, legal and family duty reasons".

14. On 27 August 2003 the Tribunal wrote to the review applicant and invited additional information to be provided especially in regard to her mother's death in September 2001, her mother's medical condition prior to her death, evidence of correspondence between the visa applicant and her brother in the USA showing the nature of the contact between them.

15. A document was presented, with a sworn translation showing a Death Certificate, issued by the Republic of Lebanon, for Damaris Khourym born at Tabaraya in 1918, female, widow, died on 29 September 2001 at Ajaltoun/Kesrouan, from a liver tumor, certified on 8 October 2001.

16. A document showing that the review applicant's mother had cancer of the colon and liver, the certificate is from the Department of Pathology, American University of Beirut, dated 17 October 2000, for Bahouth Damaris, aged 82 female, Dr H. Kaspar pathologist, tumors (adenocarnioma) in various organs including the colon, liver and in lymph nodes.

17. Four emails were supplied by the review applicant dated 18 September 2000, from Nadia to both her sister Wadad and brother Saba giving details of her mother's hospitalisation, her telephone number in the hospital and the latest medical report. The email is factual. Email dated 20 September 2000, from Nadia to family members, giving details of her mother's surgery. An email dated 17 January 2001 from Nadia to her sister Wada and her brother Saba, giving details of her mother's health and medical reports. Aside from the comment "Have a good day" the email is a formal report. An email dated 29 September 2001 from Nadia to her sister and brother, stating that the mother had deteriorated suddenly and seriously and was dying.

18. A hearing was held on 7 October 2002. Evidence was given by the nominator Wadad Issa, by her husband Mr Anis Issa and their daughter Ms Halah Issa.

19. The nominator said she was one of three children, the others being the visa applicant, and her brother in the USA. She said the visa applicant was a very well qualified medical scientist and researcher who had been offered a skilled visa previously, but because of the mother elected not to come. There was a discussion of the original documents and translations and the nominator presented the originals to be shown to the Tribunal. The documents confirmed that the visa applicant and nominator were sisters and that the mother was deceased.

20. The nominator confirmed that the brother had almost no contact with the visa applicant for 24 years. However with the mother's serious illness the visa applicant was obliged to inform him and then of her death.

21. The husband of the nominator and daughter confirmed the statements made by the nominator. They also pointed out they had come to Australia in 1986 and become Australian citizens in 1989.

22. At the time the visa application was lodged Other Family (Migrant) (Class BO) contained the following subclasses: 115 (Remaining Relative), 114 (Aged Dependent Relative), and 116 (Carer). The only subclass in respect of which any claims have been advanced is subclass 115 (Remaining Relative). There is no evidence to suggest that the visa applicant meets key criteria for any of the other subclasses.

23. In order to succeed in an application for a visa under the Regulations, it is necessary for the visa applicant to satisfy all of the criteria for the grant of a visa as set out in Part 115 of Schedule 2 of the Regulations. An applicant must meet clauses 115.211 and 115.212 at the time of application and at the time of decision, an applicant must meet clause 115.221.

(1) The applicant is a remaining relative of an Australian relative of the applicant.

(2) In this clause, "the Australian relative", in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

(a) by the Australian relative mentioned in clause 115.211 if that relative has turned 18; or

(ii) the spouse is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

26. The Tribunal must initially consider whether, at the time of application, the visa applicant was a `remaining relative' of an Australian relative as required by clause 115.211, and was validly sponsored by a person who meets the requirements of clause 115.212 for the grant of the visa. Having regard to criteria set out in the legislation and the considerations set out in Departmental policy, the relevant matters are discussed under the following headings:

Clause 115.211 and 115.212: Whether the visa applicant was sponsored at the time of application for the visa by an Australian relative who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.

27. The visa applicant was sponsored at the time of application by Wadad Bahuth ISSA (the review applicant) who is claimed to be the visa applicant's sister. The review applicant stated that she provided a certified marriage certificate in order to show the change of her surname from Bahuth to Issa, however the Tribunal notes that this document is not translated (D1 f10). The department has accepted that the applicants are siblings. The review applicant is an Australian citizen that has been lawfully and permanently resident in Australia.

Clause 115.211 and 115.221: Whether the visa applicant is a remaining relative of an Australian relative.

28. The Tribunal must next consider whether at the time of application and at the time of decision, the visa applicant is a `remaining relative' as defined in regulation 1.15. The term `remaining relative' is defined in regulation 1.15, which is affected by changes to the relevant legislation after the date of this application.

29. Together with previous legislative amendments, changes to the legislation on 1 November 2002 ensure that the Regulation 1.15 definition of remaining relative as amended on 1 November 1999, applies retrospectively to visa applications made prior to 1 November 1999 as well.

30. The relevant definition of `remaining relative' is, therefore. as follows:

(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) if the applicant or the applicant's spouse (if any) has an overseas near relative:

(i) the applicant and the applicant's spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and

(ii) neither the applicant nor the applicant's spouse (if any) have had contact with that relative within a reasonable period before making the application; and

(d) the applicant and the applicant's spouse (if any) together have not more than 3 overseas near relatives; 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.

overseas 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 of 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 of the applicant's spouse (if any) --

(c) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(3) For the purposes of paragraphs (1) (c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.

31. The definition of `remaining relative' in regulation 1.15 sets out three requirements, which must be met by a visa applicant. The first requirement is that the visa applicant must have a relative who is a brother, sister, parent, step-brother, step-sister or step-parent and is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. The second requirement is that this relative is usually resident in Australia. The third requirement is that the visa applicant is not disqualified from being a remaining relative by the operation of subregulations 1.15(1)(c), 1.15(1)(d) or 1.15(1)(e).

32. In relation to the first requirement, the visa applicant claims to be the review applicant's sister, who is an Australian citizen. The delegate appears accepted the relationship and therefore, the applicant meets the requirement in paragraph 1.15(1)(a) of the definition of remaining relative.

33. In relation to the second requirement, the review applicant resided in Australia at the time of the visa application and continues to do so currently. Therefore, the visa applicant meets subregulation 1.15(1)(b).

34. In relation to the third requirement there are four grounds specified in regulation 1.15(1) on which a visa applicant may be disqualified from being a remaining relative. Those grounds are:

* The visa applicant or their spouse (if any) do not usually reside in the same country (not being Australia) as an overseas near relative.

* The visa applicant or their spouse has not had contact with an overseas near relative during a reasonable period preceding the application.

* The visa applicant and their spouse together do not have more than three overseas near relatives.

* The visa applicant is a child who has not turned 18 and has been adopted by an Australian adoptive parent while overseas but at the time of the application the adoptive parent has not been residing overseas for a period of at least 12 months.

35. The ground that is in dispute in this case is that, at the time of application, the visa applicant had had contact with an overseas near relative. The visa applicant stated at the interview that she calls her USA based brother "from time to time" and that she sends him emails. The review applicant argues that the contact between the visa applicant and their brother was unavoidable and for the sole purpose of "medical, legal and family duty reasons, rather than for social reasons". She claimed that her mother was suffering from cancer prior to her death in September 2001 and that the visa applicant contacted the review applicant and her brother to keep them informed of their mother's treatment, progress and subsequent death and funeral arrangements. This explanation seems plausible, and there is evidence of the death of the applicant's mother, of her cancer condition prior to her death. There is evidence of some minimal correspondence in the form of an email between the visa applicant and her brother, regarding these issues. Given this evidence, the Tribunal finds that the contact that took place between the visa applicant and her brother was not of a social nature, but rather the kind of unavoidable contact that the review applicant claims. Such contact is understandable under the circumstances of the serious ill health and then death of the mother. The tone of the communication indicates that the visa applicant and of her brother are not in normal social contact. The Tribunal finds that the visa applicant is not disqualified under subregulation 1.15(1).

36. Given the findings made above, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for the visa. The Tribunal is not in a position to decide the remaining criteria.

37. The Tribunal remits the application made by the visa applicant for an Other Family (Migrant) (Class BO) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant meets the following criteria for a subclass 115 (Remaining Relative) visa: