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

1. 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).

2. 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.

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 which requires the applicant to be an orphan relative of their Australian relative or to have been adopted by their Australian relative.

4. 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.

5. 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]. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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].     

8. 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.

9. 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.

10. 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.

11. [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.

12. 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?

13. 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)). The 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.837.221.

14. ‘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’ 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 of the Regulations. In the present case, [the sponsor], is the applicant’s sister and the relevant Australian relative as evidenced by her, and the applicant’s, birth certificates.

15. For the reasons below, the applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.837.213(a) is not met.

    No parental care – r.1.14(b)

16. 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.

17. The applicant does not claim that either of his parents are deceased or that their whereabouts are unknown. There is no evidence before the Tribunal that suggests the applicant’s parents are deceased or that their whereabouts are unknown.

18. The Tribunal accepts the applicant’s father resides in the Philippines. The Tribunal accepts on the evidence the applicant’s father suffers some chronic medical conditions and has been advised by his doctor against strenuous activities that require repetitive movement and carrying of heavy burdens. The Tribunal acknowledges the applicant’s father has agreed to give responsibility for the applicant’s full support, care and education to [Ms A].

19. The Tribunal is not satisfied the applicant’s father has a permanent incapacity that is an impairment of his power, capacity, ability or possibility to care for his children indefinitely.

20. The applicant’s mother is presently in Australia caring for [Ms A]’s children while [Ms A] and her husband work. The Tribunal accepts [Ms A]’s oral evidence that her mother now suffers [condition] which is a chronic medical condition. [Ms A]’s mother however continues to look after [Ms A]’s children and her medical condition does not permanently incapacitate her from doing so.

21. The Tribunal is not satisfied the applicant’s mother has a permanent incapacity that is an impairment of her power, capacity, ability or possibility to care for her children indefinitely.

22. The Tribunal finds neither of the applicant’s parents are dead or of unknown whereabouts.

23. The Tribunal is not satisfied the applicant cannot be cared for by either parent because each of them is permanently incapacitated.

24. 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?

25. Clause 837.213(b) is met if, at the time of application, the 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.

26. [Ms A] told the Tribunal she had not adopted the applicant. There is no evidence before the Tribunal that indicates that the applicant has been adopted by [Ms A], his Australian relative.

27. The Tribunal finds the applicant has not been adopted by his Australian relative.

28. Accordingly, cl.837.213(b) is not met.

29. Given the findings above, cl.837.213 is not met.

30. The Tribunal finds that the applicant does not continue to satisfy the criterion in cl.837.213, and this is not only because the applicant has turned 18. It follows that cl.837.221 is not met.

31. 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

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

    P. Maishman
    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.