South African Grandmother Avoids Deportation

Linda Oppel came to Putt Legal seeking help with a refused Remaining Relative (Subclass 835) visa application. Linda had decided to take her case to the Minister for Immigration because she believed she had compassionate and public interest grounds that would satisfy the then Minister, Mr Scott Morrison. Linda thought that Mr Morrison would intervene and overturn the decision made by Migration Review Tribunal (MRT) to refuse her visa. 

For Linda to be eligible for the visa, she needed to prove that she was a “remaining relative of an Australian relative”. When she applied for the visa, she did not envisage that she would have a problem. After all, her only biological sister was an Australian citizen.  Unfortunately, however, the Australian migration law was not interpreted in her favour. 

Linda moved to Australia in July 2012 with her two children following the death of her husband in early 2011. Linda’s only sister, who had migrated to Australia several years prior, urged Linda to make the move with her children. 

When Linda arrived in Australia, she initially applied for a Subclass 457 Temporary Work visa. This visa was granted in September 2012. Just over a year into her employment, Linda’s employer notified her that due to internal restructuring of the business, Linda’s position would no longer be available. Linda was devastated with being made redundant, and so turned to the only feasible option for her and her children to stay in Australia: a Remaining Relative visa.  

Background

Linda Oppel was born in South Africa in 1960 and was the youngest of two sisters. Linda and her older sister Monica where happy children and shared a close bond. 

In July 1965 both girls lives were tragically changed forever when both their parents were killed in a car accident. Linda was only five years old at the time; her sister Monica was eleven. After the tragic event, both sisters were placed in foster care together for the next seven years. 

At twelve years old Linda was adopted. Monica could not be adopted at this time due to her age and independence. The adoption arrangement was to ensure Linda was no longer required to live in foster care. 

Linda remained with her adopted parents until she was eighteen. She never experienced a close relationship with her adopted parents, and there were claims of abuse. 

In 1980 Linda married her husband, Leon. Throughout her adult life, she maintained contact Monica, who had migrated to Australia in 2004. Sadly, Leon was diagnosed with a terminal illness in February 2011.  As soon as Monica heard, she returned from Australia to South Africa to support her younger sister.  

After Leon passed away, Monica invited Linda to visit her in Australia. During this visit, Linda decided that she would make arrangements to join her only sister in Australia permanently.  

Australian Visa Refusal

Linda applied for the Remaining Relative visa subclass 835 in September 2013 and was sponsored by her Monica, who by that time had been an Australian citizen for many years. 

Linda’s application for a Remaining Relative visa was refused. The reason given was that the migration law did not recognise Linda and Monica as being related to each other. According to the Migration Act, the fact that Linda had been adopted by another family at the age of 12 meant that Monica was no longer her sister.  This was the case in the eyes of the law, regardless of the true reality of their relationship. Neither Linda nor Monica could make sense of this outcome. Linda appealed this decision to the Migration Review Tribunal (MRT). But the MRT was bound to uphold the Department of Immigration’s decision because, as perverse and irrational as it was, the law was clear: the fact of Linda’s adoption severed the familial tie

What happens next

Linda came to Putt Legal when she had received the MRT’s decision. We confirmed the correct legal position, as absurd as it was. But we told Linda that she could ask the Minister for Immigration to intervene in her case. That is her situation was so unique and exceptional. And the Minister has published guidelines for intervention – including in circumstances where the outcome is clearly unreasonable or the consequences of the legislation were unintended.  

For the Minister to review Linda’s case and grant her a visa, we needed to demonstrate that the result in her case was not anticipated by the relevant law and was completely unfair. We argued that the law was never intended to operate to say that Linda and Monica, who were orphaned as young children, were not related to each other anymore because of that tragedy. 

To achieve the positive result that Linda so clearly deserved, we had to provide comprehensive submissions, supply updated evidence and assist in full consideration of the material provided to the Minister.  

Documents provided demonstrated: 

  • how the legislation and associated migration policy did not intend that a person in Linda’s circumstances would be denied a visa 
  • how the refusal of Lindas visa has led to an unfair or unreasonable result. 

We were able to provide the appropriate documentation illustrating the existence of substantial, compassionate circumstances. We were also able to prove with DNA testing that Monica and Linda were, of course, biological sisters. And we showed how this case would affect not only Linda but also Monica, who is an Australian citizen. Linda and children would face returning to South Africa, where they have no family at all. They had no one left.  

A successful Ministerial Outcome 

After a three-year wait, Minister Peter Dutton finally reviewed Linda’s application and granted her permanent residency in Australia.  Linda happily lives in Perth with her sister Monica and her daughter and grand-daughter live close

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