1419649 (Migration)

[2015] AATA 3241

1419649 (Migration) [2015] AATA 3241 (3 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jordan Cathrine Forrest

CASE NUMBER:  1419649

DIBP REFERENCE(S):  CLF2014/92703

MEMBER:Kate Millar

DATE:3 August 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 03 August 2015 at 11:50am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Miss Forrest, a citizen of South Africa, came to Australia on a student visa in 2008 with her grandparents. She says she has lived with her grandparents since she was three years old. Her grandparents migrated on contributory parent visas to join her two aunts in Australia, and are now Australian citizens. Miss Forrest applied for a Child (Residence) (Class BT) visa on 1 July 2014, and her visa application was refused by a delegate of the Minister for Immigration and Border Protection. This is an application for a review of the decision to refuse to grant her a visa under s.65 of the Migration Act 1958 (the Act).

2. At the time Miss Forrest applied for the visa, Class BT contained two subclasses: Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have been made in respect of the Subclass 837 visa.

3. The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria include a requirement that the applicant is an orphan relative of an Australia relative (cl.837.213). The term ‘orphan relative’ is a defined term and requires, among other things, that Miss Forrest cannot be cared for by either parent because her parents are dead, permanently incapacitated or of unknown whereabouts.

4. The delegate refused to grant the visa because the visa application provided Miss Forrest’s mother’s name and address as well as a consent form signed by her mother giving consent to migrate.  As a result, the delegate found that Miss Forrest’s mother was not dead, permanently incapacitated or of unknown whereabouts and that Miss Forrest did not meet the definition of orphan relative. 

5. Miss Forrest appeared before the Tribunal on 28 July 2015 to give evidence and present arguments, and was represented by her registered migration agent. The Tribunal also received oral evidence her grandparents, Mr Gordon Forrest band Mrs Mignonne Forrest, her aunt Ms Sharon Angove and her aunt’s fiancée Mr Meah.

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

   CONSIDERATION

7. The issue in the present case is whether Miss Forrest is the orphan relative of an Australian relative.

8. Clause 837.213 requires that at the time of visa application the applicant is an orphan relative of an Australian relative (cl.837.213(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl.837.213(b)).

9. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.837.111.   A ‘relative’ includes a grandparent, and in this case Miss Forrest’s grandfather is the relevant Australian relative.

   No parental care – r.1.14(b)

10. Regulation 1.14(b) requires that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

11. In this case, Miss Forrest’s mother’s address was provided on the visa application, and she provided a consent for Miss Forrest to migrate to Australia together with a copy of her passport.  Miss Forrest said at the time she thought her mother was working and that her mother does not have any disabilities.  In response to the question of why she could not be cared for by her mother, she said because her mother did not want to provide care.

12. This is consistent with the submissions and statements provided by Miss Forrest before the hearing.  These included statements from each of her grandparents about Miss Forrest being in their care and information about the situation in South Africa. 

13. The Tribunal finds her mother was not dead, permanently incapacity or of unknown whereabouts at the time of the visa application.

14. Accordingly, r.1.14(b) was not met at the time of application.

15. Given the findings above, cl.837.213 is not met, and as Miss Forrest does not meet the criteria for the grant of the visa, the decision under review is affirmed. 

16. Miss Forest is not the child of her grandfather as defined in section 5CA of the Act, and the submissions state that her grandparents did not adopt her in South Africa due to the complexity of the process.  As a result she does not meet the criteria for a subclass 802 visa.

    Request for referral for the consideration of the Minister

17. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

18. Miss Forrest requested referral to the Minister on the basis that her grandparents and aunt have taken on a parental role in relation to her, their financial situation is such that she will not be able to afford university fees, and due to the situation in South Africa for white middle class women. 

19. Her family members attended the hearing to give evidence about the family being a close family, and said that that if Miss Forrest is required to return to South Africa, another family member would need to go with her.  The family are clearly concerned about Miss Forrest’s safety should she have to return to South Africa, and distressed about the prospect of her having to leave. Miss Forrest is eighteen years of age.  Mr Forrest said he keeps up to date with events in South Africa and feels the safety and security situation is deteriorating.  Miss Forrest says her mother is in Zambia, and she would not be able to join her mother in Zambia as she does not have permission to live in Zambia. 

20. The family members also said they would do what is necessary, within the migration law, to ensure Miss Forrest stays in Australia including applying for other visas. 

21. Miss Forrest is currently living with her aunt, and her aunt’s fiancée gave evidence about the closeness she has with his children from another relationship and the hardship it would cause them were she to leave Australia. 

22. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister

    DECISION

23. The Tribunal affirms the decision not to grant Miss Forrest a Child (Residence) (Class BT) visa.

    Kate Millar
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14    Orphan relative

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a)the applicant:

    (i)has not turned 18; and

    (ii)does not have a spouse or de facto partner; and

    (iii)is a relative of that other person; and

    (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    (c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.