2217826 (Migration)

[2024] AATA 2483

2217826 (Migration) [2024] AATA 2483 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Peter Russell Loughton (MARN: 9789986)

CASE NUMBER:  2217826

MEMBER:Maxina Martellotta

DATE:18 March 2024

PLACE OF DECISION:  Perth

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 18 March 2024 at 9:32am      

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – maternal aunt of the applicants – DNA report – visa applicant has not turned 18 – father has been missing since 2003 and his whereabouts are unknown – applicant’s mother is deceased – Tribunal is satisfied that the visa applicants cannot be care for by either parent – definition of ‘orphan relatives’ met – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03,1.14, Schedule 2, cls 117.211,117.221

CASES
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 26 September 2022 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 19 January 2018. 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, which requires that, at the time of application, the visa applicant meets the definition of orphan relative as defined in reg 1.14:

   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.

4. The criterion in cl 117.211 must continue to be satisfied at the time of decision, or it must be the case that the only reason the criterion is not satisfied is because the visa applicant has turned 18 (cl 117.221).

5. In this matter, the delegate refused to grant the visa because the visa applicant did not meet cl 117.211 or cl 117.221 of Schedule 2 to the Regulations because the delegate concluded that the visa applicant did not satisfy reg 1.14(b) and so did not meet the definition of orphan relative. Specifically, they were not satisfied that the visa applicant’s biological father was either dead, permanently incapacitated or of unknown whereabouts.

6. The review applicant appeared before the Tribunal on 11 March 2024[1] to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. Other evidence before the Tribunal included materials in the Department file and materials provided to the Tribunal by the review applicant.

   [1] The original hearing date of 30 January 2024 was rescheduled following the applicants’ request.

7. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicant meets the definition of orphan relative. The specific issue that arises from the delegate’s decision is whether the visa applicant cannot be cared for by either parent because each of them are either dead, permanently incapacitated or of unknown whereabouts.

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

10. 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 visa 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.

11. ‘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.

12. In the present case, the review applicant is the relevant Australian relative.

13. For the reasons below, the Tribunal has concluded that 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. The Tribunal is satisfied that cl 117.211(a) is met, and continues to be met at the time of decision.

    Age – reg 1.14(a)(i)

14. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. According to a birth certificate on the Department file, the visa applicant was born [date]. The visa application was lodged on 19 January 2018. At the time of application, the visa applicant was [age] years of age. At the date of decision, the visa applicant is [age] years of age. The Tribunal is also satisfied that the criteria is not met at the time of decision only because the visa applicant has turned 18.[2]

    [2] Clause 117.221(b).

15. Reg 1.14(a)(i) was met at the time of application but is not met at the time of decision.

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

16. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. At hearing the review applicant and the visa applicant stated in their evidence that the visa applicant has never had a spouse or de facto partner. The visa applicant told the Tribunal that he has never been in such a relationship and is single.  This evidence is consistent with claims made by the visa applicant in his visa application. The Tribunal is satisfied that 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)

17. 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.

18. The review applicant who claims to be a relative of the visa applicant is an Australian citizen by grant. A copy of her certificate of Australian Citizenship on the Department file confirms the date of grant as 1 July 2007. The Tribunal is satisfied that the review applicant is an Australian citizen.

19. In the visa application, the visa applicant claims that the review applicant is his maternal aunt. The review applicant and visa applicant voluntarily undertook DNA testing. According to the DNA report on the Department file, the nephew-aunt relationship between the review applicant and visa applicant is practically proven. This is consistent with oral evidence presented at hearing.

20. The Tribunal finds that the review applicant is the aunt of the visa applicant who is her nephew.

21. The Tribunal is satisfied that 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)

22. 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.

23. The visa applicant claims that his biological parents were [Ms A] and [Mr B]. He claims that his biological mother is deceased, and his biological father has not been seen for many years and is presumed to be deceased.

24. A copy of a death certificate issued on 28 August 2011 (and translated version) in the name of the visa applicant’s mother was included in the Department file. It states that [Ms A] died on 1 May 2011. The Tribunal is satisfied that the visa applicant’s mother [Ms A] is deceased.

25. In relation to the visa applicant’s father the following evidence was provided.

    Evidence of the review applicant

26. The review applicant told the Tribunal that:

    a)    Her nephew, the visa applicant was born in [year] and he is now [age] years of age.

    b)    His parents were her sister [Ms A] and [Mr B].

    c)    Her sister died in 2011.

    d)    Prior to her death her sister told her that her husband, (the visa applicant’s father) had been killed at a [location] [City 1][during] the civil war in about 2003. She and the children ran away into the jungle to hide with other people.

    e)    The visa applicant was a baby at the time.

    f)     She has scant details about the circumstances but was told by her sister that rebels attacked, and people scattered, she became separated from her husband and never saw him again and believes he was killed.

    g)    Her sister told her that she spent much time asking people if they had any information about her husband, but no one knew or could tell her anything.

    h)    No one has seen [Mr B] since that time.

    The visa applicant

27. The visa applicant told the Tribunal that he has no memory of his father, and he does not know what happened to him.  His mother did not have any information about what happened to his father.

    Assessment of evidence

28. There is limited information about what happened to [Mr B].  The review applicant has, however, provided a consistent and credible account as told to her by her sister.  The Tribunal notes that consistent with that evidence that there was civil conflict [in] the period that the review applicant states her brother-in-law went missing in [City 1]. Reports of the conflict include references to serious acts of violence being committed against civilians in [City 1].[3] Some reports specify specific attacks which occurred in [City 1] in April 2003.

    [3] [deleted]

29. The Tribunal makes the following findings of fact:

    a)[Ms A] and [Mr B] are the parents of the visa applicant.

    b)In 2003 [Mr B] went missing following civil conflict in [City 1].

    c)Members of [Mr B]’s family have not seen him or heard of him since that event. [Mr B] has not contacted members of his family since that event.

    d)[Ms A] died on 1 May 2011.

30. The Tribunal has found that the visa applicant’s mother died in 2011. The Tribunal has also found that his father has been missing since 2003 and his whereabouts are unknown. As noted, the review applicant stated that her sister told her that her husband was killed. In written submissions, the review applicant’s representative made reference to the presumption of death.  The common law presumption of death is commonly expressed as follows:

    If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of, by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him or have learned of his whereabouts, were he living then, in the absence of evidence to the contrary, it should be found that he is dead.[4]

    [4] Axon v Axon (1937) 59 CLR 395 at 405.

31. According to the evidence provided at hearing, [Mr B] has not been seen or heard from for some 20 years.  His wife made inquiries of his whereabouts to no avail. As noted, there is limited evidence and the person who had the most direct knowledge about the circumstances in which [Mr B] disappeared is deceased. Given the volatile security situation, reports of violence and deaths in [City 1] at that time, the fact that there has been no further contact or sightings of [Mr B], that he has not sought to reunite or contact his family and that his wife’s inquiries did not locate him does in the Tribunal’s view give rise to a presumption that the visa applicant’s father died in 2003.

32. In any event, the Tribunal concludes as a finding of fact that the visa applicant’s father has been missing since 2003 and his whereabouts are unknown.

33. The Tribunal is satisfied that the visa applicant’s mother died in 2011 and the visa applicant’s father has been missing since 2003 and his whereabouts are unknown.  The Tribunal is satisfied that at the time of application and at the time of decision, the visa applicant cannot be cared for by either parent.

34. 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)

35. 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.

36. Consistent with materials provided in support of the application and written submissions, the review applicant in her evidence confirmed that following her sister’s death she arranged for a friend to take care of the visa applicant and his siblings.  Since then, she has returned to Liberia to check on her nephew’s welfare and more recently has arranged new accommodation.

37. She has concerns for her nephew if he were to remain in Liberia. She said that the security and public health situation is not safe or stable.  Her nephew is a student and it is in her nephew’s best interests to live in Australia with her and her family where she can take care of him.

38. In support of the visa application, the review applicant (as sponsor) provided evidence of the financial support she provides to her nephew. In a statutory declaration she stated that she was separated and did not have news of her sister and her nieces and nephews for some time and believed her sister had died. However, after settling in Australia, she received news of her sister, and they were able to reconnect.  She started to provide financial support to her sister and the children. Her sister passed away from an illness and from that time she took on the role of caring for her sister’s children facilitated by a friend who lives in Liberia. As noted more recently she has arranged accommodation for the visa applicant.

39. The Tribunal accepts that the review applicant has genuine concerns about her nephew’s wellbeing.  The Tribunal is satisfied 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.

40. The Tribunal is satisfied that reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

    CONCLUSION

41. Given the findings above, cl 117.211 was met at the time of application. In addition, 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.

42. For these reasons, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

43. 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.

    Member M Martellotta

    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.