1612846 (Migration)

[2016] AATA 4682

1612846 (Migration) [2016] AATA 4682 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Leonard David White

VISA APPLICANT:  Ms Phu Tuong Trinh Nguyen

CASE NUMBER:  1612846

DIBP REFERENCE(S):  2015071771

MEMBER:Kira Raif

DATE:23 November 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 23 November 2016 at 3:48pm

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 15 August 2016 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 is a national of Vietnam, born in September 2003. She applied for the visa on 15 December 2015. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was an orphan relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 23 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the spouse of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Clause 117.211 requires the applicant to be an orphan relative of an Australian relative. The term ‘orphan relative’ is defined in r. 1.14 as follows

   Reg 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.

6. Clause 117.212 requires that at the time of application the visa applicant is sponsored by the Australian relative or the Australian relative’s spouse or de facto partner. The Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. The sponsor must have turned 18, and be a settled Australian citizen, settled Australian permanent resident or settled eligible New Zealand citizen. If sponsoring, the spouse or de facto partner must cohabit with the Australian relative. ‘Settled’, in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period: r.1.03.

   Is the applicant an orphan relative of an Australian relative?

7. The applicant was sponsored in her application by Mr White, who completed the sponsorship form. The delegate noted that the applicant was the granddaughter of Ms Thi Ha Tan Nguyen, who was not the holder of a permanent visa at the time the application was made, concluding that the applicant did not meet cl. 117.211. However, the Tribunal is mindful that the definition of a ‘relative’ in r. 1.03 includes a step-grandparent. It is not in dispute that at the time of the application and at the time of this decision, Ms Thi Ha Tan Nguyen is married to, and continues to be in a spousal relationship with, Mr White. Common meaning of the term ‘step-grandparent’ would include a spouse of a grandparent. As such, Mr White is the step-grandparent of the visa applicant and meets the ‘relative’ requirement in cl. 117.211. Mr White is an Australian citizen. The Tribunal finds that the sponsor, Mr White, is the step-grandparent and a ‘relative’ of the visa applicant for the purpose of cl. 117.211.

8. The Tribunal has considered whether the visa applicant is an orphan relative.

9. In oral evidence the review applicant stated that the visa applicant’s mother had the child at the age of 16. Within weeks of the birth, the father disappeared and may have now moved to the US but they cannot confirm that. It was the mother and the grandmother who brought up the child. With time, the mother felt incapable of performing the parental role and the guardianship was given to the grandmother. The child’s mother has now remarried and lives in a different country. The review applicant said that the child cannot move to Norway because she has no visa. There is no evidence to indicate that the child has applied for the visa or had been denied a visa and in any case, the fact that the child may not have a place to live, either in Norway or in Vietnam, is not determinative.

10. The Tribunal acknowledges that the custody of the child has been given to the child’s grandmother. However, in the Tribunal’s view, that is not sufficient and the existence of the custody arrangement is not sufficient to extinguish the child – parent relationship between the child and her mother. There is no evidence of the child being adopted by the grandmother, either formally or customarily.

11. The Tribunal accepts that the review applicant and his partner had been caring for the child. The Tribunal accepts that at least since the visa applicant entered Australia, she has been living with her grandmother and the review applicant and had been in their daily care. The review applicant’s evidence to the Tribunal is that prior to the child’s entry to Australia, she had been living with her mother and grandmother. The Tribunal also accepts that there is a custody arrangement in place. However, the Tribunal finds that there is still a parental relationship between the visa applicant and her mother and, for the purpose of r. 1.14, the child’s mother is a parent. While the Tribunal accepts that the whereabouts of the child’s biological father are unknown, the whereabouts of the child’s mother are known and she is not dead.

12. The Tribunal is not satisfied on the evidence before it that the mother is permanently incapacitated. The Tribunal is prepared to accept that the child’s mother may have been too young at the time of giving birth but at the time this application was made, she was thirteen years older and there is nothing to suggest she is not capable of providing care to the child. While she may not wish to care for the child or may feel incapable of doing so, and even if she feels financially constrained, that is not sufficient to establish permanent incapacity and that the child cannot be cared for by her mother because the mother is permanently incapacitated.

13. The Tribunal is not satisfied that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied that paragraph (b) of the definition of ‘orphan relative’ in r. 1.14 is met. The Tribunal is not satisfied the visa applicant is an orphan relative of an Australian relative. She does not meet cl. 117.211 and cl. 117.221.

14. There is nothing before the Tribunal to indicate that the visa applicant is a dependent child of the sponsor and the Tribunal is not satisfied that she meets cl. 101.211. There is also no evidence that there are any adoption arrangements with respect to the visa applicant. The Tribunal is not satisfied that the visa applicant meets cl. 102.211.

15. 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. The Tribunal’s decision relates to a minor child. The child is being cared for by the primary visa applicant, who has been granted custody of the child. The Tribunal accepts the parties’ evidence that the child’s mother has little interest in the child, has not provided adequate care to the child and maybe unwilling to do so in the future. The parties state that the child may have nowhere to live in Vietnam as her mother is in the process of migrating to another country. The Tribunal has formed the view that there are compassionate considerations in this case. 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) and will refer the matter to the Department.

    Conclusion

16. 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

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

    Kira Raif
    Senior Member