1609681 (Migration)

[2016] AATA 4388

1609681 (Migration) [2016] AATA 4388 (25 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Mackalistair Craig Wells So-On

CASE NUMBER:  1609681

DIBP REFERENCE(S):  CLF2016/21552

MEMBER:John Cipolla

DATE:25 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2016 at 2:58pm

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 20 June 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 April 2016. At that time, 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). Relevantly to this case, they include cl.837.213(a) which states that the applicant is an Orphan Relative of an Australian relative of the applicant and that Orphan Relative has the meaning set out in regulation 1.14 of the Migration Regulations. Regulation 1.14 states that “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 the applicant has not turned 18, does not have a spouse or de facto partner and is a relative of that other person and the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts and there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

4. The delegate refused to grant the visa because the applicant did not meet cl.837.213(a) in Schedule 2 of the Migration Regulations. The delegate found that the applicant was incapable of meeting the requirements of cl.857.213(a) on a number of grounds. Firstly having regard to the definition of ‘Orphan Relative’ in regulation 1.14 of the Migration Regulations the applicants father’s friend was not considered a ‘relative’ for the purposes of the regulatory definition. Secondly the delegate could not be satisfied on the evidence before her that there was evidence substantiating the requirement that the applicant’s biological parents were missing and further to this there was no evidence to suggest that if they were missing appropriate steps had been undertaken to locate them.

5. Mr Craig Wells the review applicant in these proceedings lodged a review application with the Migration and Refugee Division of the Administrative Appeals Tribunal on 29 June 2016 on behalf of the applicant who is a minor. 

6. A range of evidence has been provided at review stage which has been duly considered by the Tribunal.  This evidence includes and undated statement which states that Craig and Karen Wells have done everything in their power to locate the applicant’s biological parents.  They have tried through a contact in Papua New Guinea (PNG), Eunice So-On.  They have attempted to facilitate contact through the telephone, e-mail and Facebook all to no avail.  They also state that they provided the applicant’s biological parents with a phone and computer and set them up with an e-mail address but all attempts to contact them via these methods have been unsuccessful.  They state that they had not heard from anyone in PNG since Christmas 2015.  They state that on return visits to PNG they attempted to make contact with the applicant’s biological parents without success.  They state that if the Departmental decision was not overturned at merits review they were concerned to whom the applicant would be returned to.  They state that they adore the applicant who has an extended family in Australia that also adore him.  They state that the applicant’s day care provider has commenced a petition which has 30,000 signatures to be sent to the Minister.  Further to this they have advised that ”we would like to let you know that we have and will support Cal in every way and that we are a hard working well educated couple who have our own home, employment and private health. Cal will be well provided for and is not only loved by us but also by his extended family here in Australia and by his many friends and Daycare providers.”

7. The review applicant also provided the Tribunal with a report titled “Child Labour in PNG” prepared by the International Labour Organisation in 2011.

8. The review applicant Craig Wells and his wife Karen Wells appeared before the Tribunal on 25 August 2016 to give evidence the applicant was also in attendance.

9. At the outset of the review hearing the Tribunal explained that it was conducting a review of a decision of the Department of Immigration to refuse the applicant a Subclass 837 Orphan Relative visa. The Tribunal noted that in this case the delegate could not be satisfied that the applicant was an ‘Orphan Relative’ of the sponsor. Further to this the delegate was not satisfied that the applicant’s natural parents could not care for the applicant because their whereabouts were unknown.  The Tribunal noted that there was a high onus with regard to this requirement and that the type of evidence usually adduced would be evidence such as that provided by the Red Cross tracing service

10. The Tribunal explained at the outset of the hearing the process of review and the prospective outcomes of review.

11. The Tribunal noted that in the conduct of the review the Tribunal was required to consider the information on the Departmental file, evidence that had been provided to the Tribunal at review and evidence provided at the review hearing. The Tribunal made reference to the fact that migration law was prescriptive and a visa applicant needed to meet criteria relevant for the grant of the visa at time of application and at time of decision.

12. The Tribunal noted that having regard to the evidence before it, and having regard to the definition of Orphan Relative as defined in regulation 1.14 of the Migration Regulations that it appeared that the applicant was incapable of meeting this definition as he was not a relative of the sponsor. The Tribunal noted that relative is defined in regulation 1.03 of the Migration Regulations.

13. Both Mr and Mrs Wells conceded this fact. The Tribunal advised that it was required to make a lawful decision having regard to the facts before it applying the relevant regulatory provisions. The Tribunal noted that failure to do so would mean that the Tribunal’s decision would be overturned at judicial review. The Tribunal noted that it had no discretion in this review and that the exercise of any discretion lay with the Minister for Immigration.

14. Mr Wells advised the Tribunal that prior to the expiration of the applicant’s Visitor visa he and Mrs Wells attended the Department of Immigration and were advised that a further Visitor visa application would not be successful and that an application for the ‘other’ visa should be made. The Tribunal clarified with Mr Wells whether this was a reference to an Orphan Relative visa, Mr Wells advised that it was only referred to by the Departmental officer as the ‘other’ visa. Mr Wells added that he and his wife believed that they had a moral obligation as Australians to make a visa application on behalf of the applicant given the applicant’s circumstances.

    FINDINGS AND REASONS

15. 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 the applicant has not turned 18, does not have a spouse or de facto partner and is a relative of that person and the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts and there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

16. An essential requirement is that an applicant for an Orphan Relative visa must be an Orphan Relative of another person who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

17. In this case the sponsor Mr Craig Wells who is an Australian citizen is not a relative of the applicant as that term is defined in the Migration Regulations.

18. It follows that the applicant does not satisfy the definition of Orphan Relative.

19. Therefore the Tribunal finds that cl.837.213(a) is not met. Clause 827.213(b) is not applicable.

20. Given the findings above, clause 837.213 is not met.

21. For these reasons, the criteria of the grant of a Subclass 837 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 802.)

22. During the hearing the Tribunal noted that the Minister has powers under the Migration Act to substitute a decision made by the Tribunal with a decision that is more favourable to the applicant. Generally, the Minister will only do so if there are compelling, compassionate or humanitarian considerations. The Tribunal notes that the review applicant Mr Wells can make a request directly to the Minister on behalf of the visa applicant.

    DECISION

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

    John Cipolla
    Senior 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.