1815875 (Migration) - [2021] AATA 213

1815875 (Migration) [2021] AATA 213 (22 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1815875
MEMBER:P. Maishman
DATE:22 January 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 22 January 2021 at 4:04pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan Relative) – ability of parents to provide care – parents have health conditions but are not permanently incapacitated – applicant not adopted by sponsor – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 837.213, 837.221
CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 May 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 27 June 2017. 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.
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 which requires the applicant to be an orphan relative of their Australian relative or to have been adopted by their Australian relative.
The delegate refused to grant the visa because the applicant did not meet cl.837.213 of Schedule 2 to the Regulations because the applicant is not an orphan relative as defined.
The applicant is [age] years old and is represented in relation to the review by his Australian relative sponsor [Ms A]. [Ms A] appeared before the Tribunal on 15 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]’s husband, [Mr B].
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing the visa application, sponsor form, birth certificates of the sponsor and applicant and other documents relevant to the application and referred to in the delegate’s decision record. The birth certificates of the sponsor and applicant show they have the same mother, [Ms C] (maiden name), and father, [Mr D].
The applicant gave the Tribunal a copy of the delegate’s decision record. The delegate noted the applicant’s father and mother were not claimed to be deceased. The whereabouts of the applicant’s father and mother were known.
Prior to the hearing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1815875 (Migration)

Details

AGLC: 1815875 (Migration) [2021] AATA 213
Case: [2021] AATA 213
Decision Date: 22 January 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, specifically Subclass 837 (Orphan Relative), before the Administrative Appeals Tribunal. The applicant, a minor, sought the visa based on being an orphan relative of their sister, who is an Australian permanent resident and the sponsor. The core of the dispute revolved around whether the applicant's parents were unable to provide care due to death, permanent incapacity, or unknown whereabouts, as required by the visa criteria.

The Tribunal was required to determine if the applicant met the definition of an "orphan relative" under Regulation 1.14 of the Migration Regulations 1994. This involved assessing whether both of the applicant's parents were either deceased, permanently incapacitated, or of unknown whereabouts. The Tribunal also needed to consider if there was any compelling reason to believe that granting the visa would not be in the best interests of the applicant.

The Tribunal's reasoning focused on the evidence presented regarding the applicant's parents. While the applicant's father suffers from permanent medical conditions and resides in the Philippines, the applicant's mother is in Australia and, despite a recent diagnosis of a medical condition requiring medication, was not found to be permanently incapacitated. The Tribunal accepted the evidence of the applicant's sister, the sponsor, and her husband, finding them to be credible witnesses. Based on this assessment, the Tribunal concluded that the criterion that both parents must be unable to provide care due to death, permanent incapacity, or unknown whereabouts was not met. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file containing the visa application, sponsor form, birth certificates of the sponsor and applicant and other documents relevant to the application and referred to in the delegate’s decision record. The birth certificates of the sponsor and applicant show they have the same mother, [Ms C] (maiden name), and father, [Mr D]. The applicant gave the Tribunal a copy of the delegate’s decision record. The delegate noted the applicant’s father and mother were not claimed to be deceased. The whereabouts of the applicant’s father and mother were known. Prior to the hearing the Tribunal received a letter from the applicant dated 7 January 2021; letters of support from [Ms E], [Ms F] and [Ms G] dated 8 January 2021; school achievement awards; and the applicant’s father’s medical information and certification of his incapacity previously provided to the Department. The applicant is a minor. [Ms A] is the applicant’s biological sister, the sponsor, and acting as the applicant’s representative. [Ms A] gave oral evidence on the applicant’s behalf. [Ms A] confirmed the applicant’s parents are not deceased and their whereabouts are known. Their father is [Mr D] and he resides in the Philippines. He suffers from permanent medical conditions. [Ms A] told the Tribunal their mother, [Ms C], is currently in Australia and helping [Ms A] look after her [age] and [age] children while she and her husband work. [Ms A] and her husband provide full financial support for her mother and the applicant. The applicant’s mother does not do paid work in Australia or in the Philippines. [Ms A] would continue to financially support her mother and the applicant if they had to return to the Philippines. The facilities and environment in Australia are better for the applicant than they are in the Philippines. The applicant is excelling at school. The applicant’s mother has recently been diagnosed with [medical condition] and is required to take medication. The [condition] has not caused serious illness that has made her mother permanently incapacitated to care for her children. [Ms A]’s evidence was clear and consistent. The Tribunal accepts the evidence of [Ms A] on the applicant’s behalf on the basis she is a credible witness. [Mr B] told the Tribunal the applicant had few opportunities in the Philippines and he wanted the applicant to get the advantage of the opportunities of good education and a good life in Australia. He fully supports his wife’s sponsorship of her siblings. [Mr B]’s evidence was clear and consistent, and the Tribunal accepts his evidence on the basis that he is a credible witness. The issue in the present case is whether the applicant cannot be cared for by either of his parents because each of them is either dead, permanently incapacitated or of unknown whereabouts.Is the applicant an orphan relative of an Australian relative?

Decision

Reasons for decision

For these reasons, the criteria for 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).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.P. MaishmanMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14 Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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