1516425 (Migration)

[2016] AATA 3906

1516425 (Migration) [2016] AATA 3906 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abimbola Sunmola

VISA APPLICANT:  Master Omogbolahan Afolakemi-Jinadu

CASE NUMBER:  1516425

DIBP REFERENCE(S):  F2015/046238

MEMBER:Wendy Banfield

DATE:19 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 May 2016 at 4:54pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 October 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 July 2015. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211 and cl.117.221.

4. The delegate refused to grant the visa because the applicant did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations because it was determined the applicant did not meet the definition of an orphan relative in reg.1.14.

5. The review applicant appeared before the Tribunal on 19 May 2016 to give evidence and present arguments.

   Background

6. The review applicant is an Australian citizen born in Nigeria. He is the maternal uncle of the visa applicant as he is the brother of the visa applicant’s mother who passed away in 2013. The visa applicant is a citizen of Nigeria and is currently 15 years old. He resides at a boarding school and stays with the review applicant’s cousin during holiday periods.

7. On 15 April 2015 the review applicant and his wife were granted joint guardianship of the visa applicant and his sister, along with the children’s father. It is claimed the visa applicant’s father has no relationship with him and consents for the review applicant to have care and custody.

8. Prior to the Tribunal hearing, the following documents were submitted:

   ·     Social worker report dated 22 November 2014 regarding the suitability of the review applicant and his family as guardians of the visa applicant and his sister;

   ·     Joint Guardianship Order of the Magistrates Court of Lagos dated 15 April 2015 in relation to the visa applicant and his sister;

   ·     Submission by the review applicant, Mr Sunmola dated 10 May 2016;

   ·     Affidavit of Consent to Guardianship dated 2 March 2015 by the visa applicant’s father, Mr Ibraheem Ajao Jinadu;

   ·     Statement by the visa applicant Afolakemi Jinadu Omogbolahan dated 2 May 2016;

   ·     Sworn affidavit dated 4 May 2016 by the cousin of the review applicant, Mr Olawale Biobaku.

   The hearing

9. The review applicant Mr Sunmola told the Tribunal the visa applicant is currently at boarding school in Lagos, Nigeria. His mother passed away on 26 April 2013 and he was living with Mr Sunmola’s cousin. The Tribunal was told the child’s father has not raised him and does not have a relationship with him. Mr Sunmola believes, the visa applicant needs a father role which is why he offered to be a guardian and take responsibility for him, to which the father agreed.  Mr Sunmola said the visa applicant’s father has been reluctant and evasive regarding his responsibilities to his child.

10. It is claimed the visa applicant’ father lives in two bedroom accommodation that houses eight people and due to his lifestyle and lack of means, is not able to take care of his son. According to Mr Sunmola, the last time the visa applicant’s father saw him was at the funeral of the child’s mother, the father’s ex-wife. Mr Sunmola said it is a critical time in the visa applicant’s life because although he is studious and doing well at school, he is emotionally disturbed. The visa applicant apparently speaks to Mr Sunmola’s children in Australia and is close to them. The review applicant said it would be in the best interests of the child if he were to reside with him in Australia.

11. The Tribunal explained the requirements of Regulation 1.14 and the fact that the visa applicant’s biological father is not dead, permanently incapacitated or of unknown whereabouts. Mr Sunmola said he had researched the visa requirements on the Departmental website and believed it was possible for the decision maker to consider “other circumstances”. Mr Sunmola said he had obtained joint legal guardianship of the visa applicant and he thought if the parent allowed the relative to take charge of the child, they may be eligible for the visa.

12. Mr Sunmola referred the Tribunal to a report of the United Nations Committee on the Rights of the Child in relation to the best interests of the child, and the Australian Family Law Act 1975 s.60CC that refers to the need to protect a child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. The Tribunal explained that in order to meet the requirements of the visa, the visa applicant needs to satisfy Reg 1.14 of the Migration Regulations.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the definition of an orphan relative pursuant to reg.1.14.

    Is the visa applicant an orphan relative of an Australian relative?

15. Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl.117.211(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl.117.211(b)). The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl.117.221.

16. ‘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 visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): r.1.03. In the present case, the review applicant Mr Sunmola is the relevant Australian relative.

17. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met, and does not continue to be met at the time of decision.

    No parental care – r.1.14(b)

18. Regulation 1.14(b) requires that the visa 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.

19. On the evidence available to the Tribunal, the visa applicant’s mother is deceased as of 2013. The visa applicant’s father is alive and provided an Affidavit of Consent to Guardianship dated 2 March 2015 in which he states that there is no bond between himself and his children that were born to his ex-wife. The visa applicant’s father states he voluntarily consents to the appointment of Mr Sunmola and his wife as joint legal guardians of the visa applicant and his sister. Mr Sunmola said the visa applicant’s father does not have the means or the lifestyle to take on the care of the visa applicant. Unfortunately, an unwillingness on the part of a parent and the desire for another relative to assume responsibility does not meet the requirements of r.1.14(b). The Tribunal does not have any discretion in the case if the definition of Orphan relative according to the Migration Regulations is not met.

20. Accordingly, r.1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

21. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978. There is no claim that the visa applicant has been adopted by the Australian relative and this criterion is not relevant.

22. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, and this is not only because the visa applicant has turned 18. It follows that cl.117.221 is not met.

23. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Wendy Banfield
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan 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.