2006920 (Migration)

[2022] AATA 3897

2006920 (Migration) [2022] AATA 3897 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006920

MEMBER:Ann Duffield

DATE:12 August 2022

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl 117.211 of Schedule 2 to the Regulations; and

·cl 117.221 of Schedule 2 to the Regulations.

Statement made on 12 August 2022 at 12:06pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – aunt and niece – applicant cannot be cared for by either parent – mother deceased – father permanently incapacitated with multiple physical and mental conditions, and no home, income or relationship with applicant – legal custody relinquished – applicant now aged over 18 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211(a), 117.221

CASE
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 Home Affairs on 31 January 2020 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 4 May 2017. 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 (Cth) (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 of Schedule 2 to the Regulations because they were not satisfied that the applicant’s father suffered from permanent incapacity such that he could not look after her.

5. The review applicant appeared before the Tribunal on 12 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone to Mauritius.

6. The review applicant was represented in relation to the review, however they did not attend the scheduled hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   consideration of claims and evidence

8. The issue in the present case is whether the applicant’s father is permanently incapacitated such that she cannot be cared for by him.

   BACKGROUND

9. The visa applicant is a citizen of Mauritius born on [Date 1]. She is currently [Age 1, over 18] years old. The application for the visa subject to this review was lodged on 4 May 2017 when she was [Age 2, under 18] years old. The application was refused on 30 January 2020.

10. The applicant has travelled to Australia on several prior occasions in 2011, 2014 and between January and October 2020 when she was stranded here as a result of border closures due to COVID. She has at all times complied with her visa conditions.

11. The sponsor is an Australian citizen born on [Date 2] in Mauritius. She arrived in Australia in 2009 and acquired Australian citizenship in May 2015. A copy of her Australian citizenship document is at Folio 83 of the Department’s file. The sponsor is married and has two sons aged [Age 3] and [Age 4] years. She and her family live together in a house in [Suburb], ACT.

12. The applicant’s mother, [Ms A], died [in] March 2016. [Ms A] is the sponsor’s sister and copies of their birth certificates showing that relationship are at Folio’s 54 and 60 of the department’s file.

13. The applicant’s father is still alive and lives in Mauritius with his parents. Medical records provided to the Department and the Tribunal show that he is an alcoholic, suffers from dementia and other ailments and is unable to look after the applicant.

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

14. 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.

15. ‘Orphan relative’ is defined in reg 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): reg 1.03.  In the present case, the applicant’s aunt, being the sister of her deceased mother, is the relevant Australian relative.

16. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.

    Age – reg 1.14(a)(i)

17. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The application for the visa subject to this review was lodged on 4 May 2017 when she was [Age 2, under 18] old. Accordingly reg 1.14(a)(i) was met at the time of application .

    Spouse or de facto partner – reg 1.14(a)(ii)

18. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The evidence provided by both the review applicant and the visa applicant was consistent in that the visa applicant is neither married nor in a de-facto relationship. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

19. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

20. The review applicant (sponsor) is an Australian citizen born on [Date 2] in Mauritius. She arrived in Australia in 2009 and acquired Australian citizenship in May 2015. A copy of her Australian citizenship document is at Folio 83 of the Department’s file. The sponsor is married and has two sons aged [Age 3] and [Age 4] years. She and her family live together in a house in [Suburb], ACT.

21. The visa applicant’s mother, [Ms A], died [in] March 2016. [Ms A] is the review applicant’s sister and copies of their birth certificates showing that relationship is at Folio’s 54 and 60 of the department’s file.

22. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

23. 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.

24. The applicants mother died [in] March 2016 in Mauritius. A copy of a Certified Extract of a Death Entry is at Folio 50 of the department’s file. The certificate does not state cause of death however the applicant stated that she dies of cancer. Evidence at the hearing from both applicants confirms this fact.

25. The Tribunal is satisfied that the applicant’s mother is deceased.

26. The applicant’s father, [Mr B], [Age 5] years old, is still alive and it is claimed he lives with his parents in Mauritius.

27. A medical report from [Dr C] in Mauritius, for [Mr B] dated 9 August 2022 states that he is an alcoholic and suffers from Cirrhosis, Ataxia and epileptic fits along with severe mental depression, Mallory-Weiss syndrome, memory loss in the context of an Alzheimer syndrome and heart palpitations.

28. [Dr C] further states that [Mr B] is unable to work because of his medical ailments; does not have a home of his own and has no regular income. For all these reasons, [Dr C] states that [Mr B] is incapable of looking after the applicant.

29. The review applicant told the Tribunal at the hearing that she had asked the visa applicant to contact her father and take him to his GP to seek a report on his health and capacity to care for the visa applicant. The visa applicant corroborated this account, telling the Tribunal that she sought out her father two weeks ago and took him to [Dr C] who subsequently provided the report referred to above.

30. The review applicant told the Tribunal that the visa applicant’s father had always been a heavy drinker and after she was born it became much worse. Her sister took the visa applicant away from the family home when she was [Age 6] years old to go and live with her parents. Both applicants told the Tribunal independently that the visa applicant’s father had become abusive, had stopped working and was increasingly drunk and violent. Because of his alcoholism and other conditions, he had no capacity to care for the visa applicant, he provided no financial or other assistance since she was [Age 6] years old until now.

31. The visa applicant has been cared for and financially supported by her grandparents since her mother’s death. Her father has made no contribution to her upkeep or well being and they have no relationship. The visa applicant has been studying at [University] and has not worked, being wholly dependent upon her grandparents.

32. The doctor’s report does not indicate that the visa applicant’s father is seeking or participating in any kind of rehabilitation for his alcoholism or that any of his ailments are temporary and will cease or even ease over time such that he would regain some physical or mental capacity to look after the applicant. Indeed, Alzheimer Syndrome is progressive, and his condition is likely to worsen as is his Mallory-Weiss syndrome if his alcoholism is untreated. These conditions, combined with his serious mental health issues, chronic unemployment, lack of family home suggest that his inability to look after the visa applicant for the past 15 years or into the future is not temporary.

33. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – reg 1.14(c)

34. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant.

35. The visa applicant is currently living with her grandparents, who are elderly. Her father has relinquished legal custody and her Aunt in Australia can provide her a home with her own family and a future. She is now an adult, having waited some five years for an outcome to her visa application and has expressed a clear wish to reside with her Aunt in Australia.  There is no compelling reason that the grant of a visa would not be in her interest. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

    Conclusion on time of application criterion:

36. Given the findings above, cl 117.211 is met.

    Conclusion on time of decision criterion:

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

    CONCLUSION

38. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    decision

39. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl 117.211 of Schedule 2 to the Regulations; and

    ·cl 117.221 of Schedule 2 to the Regulations.

    Ann Duffield
    Senior 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.