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

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).
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.
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.
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.
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.
The review applicant was represented in relation to the review, however they did not attend the scheduled hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
consideration of claims and evidence
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
The visa applicant is a citizen of Mauritius born on [Date 1]. She is currently [Age 1, over 18] years old. The application for…

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 2006920 (Migration)

Details

AGLC: 2006920 (Migration) [2022] AATA 3897
Case: [2022] AATA 3897
Decision Date: 12 August 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by a citizen of Mauritius. The applicant, who was over 18 at the time of the review but under 18 when the application was lodged, sought to migrate to Australia to live with her aunt, an Australian citizen. The applicant's mother had died, and her father, who lived in Mauritius, was described as an alcoholic suffering from dementia and other ailments, rendering him unable to care for her.

The primary legal issue before the Tribunal was whether the applicant qualified as an "orphan relative" under the Migration Regulations 1994. This required determining if the applicant could not be cared for by either parent due to their death or permanent incapacity, and if she was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. The Tribunal also had to consider the criteria relating to the applicant's age and whether she had a spouse or de facto partner at the time of application and decision, as well as the best interests of the applicant.

The Tribunal found that the applicant's aunt, being the sister of her deceased mother, was the relevant Australian relative. It was satisfied that the applicant was an orphan relative of an Australian relative at the time of application and continued to meet this criterion at the time of the decision, notwithstanding her having turned 18. The Tribunal also noted that the applicant had not turned 18 at the time of application, satisfying that limb of the definition of an orphan relative.

Given these findings, the Tribunal remitted the application to the Minister for reconsideration. The Tribunal directed that the applicant met the criteria under cl 117.211 and cl 117.221 of Schedule 2 to the Regulations, leaving the remaining criteria for the visa to be assessed.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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? 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. ‘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. 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) 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)

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.consideration of claims and evidence 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 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. 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. 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. 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. 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? 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. ‘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. 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)

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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.Ann DuffieldSenior MemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan 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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