2319047 (Migration)

[2024] AATA 2484

2319047 (Migration) [2024] AATA 2484 (22 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Rasheed Qasimi (MARN: 1575435)

CASE NUMBER:  2319047

MEMBER:Margie Bourke

DATE:22 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 22 March 2024 at 11:25am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – 117 (Orphan Relative) visa – review applicant failed to provide information – DNA testing – not satisfied the medical reports are evidence the visa applicant’s father is permanently incapacitated – not satisfied that the visa applicant’s parents were permanently incapacitated from providing care for him at the time of application – not satisfied that the visa applicant is an orphan relative – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.111, 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 17 October 2023 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 7 September 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 a visa applicant is an orphan relative of an Australian relative at the time of application within the meaning of reg 1.14, or alternatively is not an orphan relative only because the visa applicant has been adopted by the Australian relative.

4. The delegate refused to grant the visa because the visa applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant met the definition of orphan relative in reg 1.14(b).

5. The review applicant appeared before the Tribunal on 20 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, [name], who attended the hearing by telephone. The Tribunal hearing was conducted with the assistance of an [interpreter].

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The main issue in the present case is whether the visa applicant cannot be cared for by either parent at the time of application because each of them is either dead, permanently incapacitated or of unknown whereabouts (reg 1.14(b)).

9. At the conclusion of the hearing, the Tribunal discussed with the review applicant and his representative that the member had not made up her mind, and had to consider whether the visa applicant met the requirements of reg 1.14(b) at the time of application, or at the time of decision. The Tribunal advised the review applicant that it did not request any further information to be provided, but requested the review applicant and his representative to advise the Tribunal if he wished to provide further information for the Tribunal to consider.

10. On 21 March 2024 the Tribunal sent an email to the review applicant at the email address of his representative and authorised recipient for correspondence, advising the Tribunal had not received any advice from the review applicant as to whether he wished to submit any further information. The Tribunal advised in the email that the member has completed her considerations and intends to finalise the decision, and the purpose of the email correspondence is to notify the review applicant that the decision will be finalised on the next day, 22 March 2024 unless the review applicant advises that he wishes to provide posthearing submissions for the member to consider.

11. The Tribunal did not receive any response from the review applicant, and has proceeded on the basis the review applicant did not wish to provide any further information or submissions for the Tribunal to consider in this review.

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

12. 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.

13. ‘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.

14. In the Department’s decision record, it is recorded that the review applicant and the visa applicant participated in DNA testing, which concluded there was extremely strong support for the proposition that the review applicant and the visa applicant are full biological brothers. The Tribunal is satisfied that the review applicant is a close relative within the meaning of reg 1.03, of the visa applicant, namely his brother.

15. The Tribunal is satisfied that the review applicant is an Australian permanent resident at the time of application. The Tribunal accepts that the review applicant has subsequently been granted Australian citizenship. In the present case, the review applicant, is an Australian permanent resident at the time of application, is the brother of the visa applicant and for the purposes of the requirements of cl.117.211, the review applicant is the relevant Australian relative.

16. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Therefore the Tribunal finds that cl.117.211(a) is not met at the time of application.

17. The Tribunal notes that the delegate found that the visa applicant met the requirements of reg 1.14(a)(i),(ii) and (iii) at the time of lodgement. The Tribunal has reached the same findings for the following reasons.

    Age – reg 1.14(a)(i)

18. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. Based on the visa applicant’s [Country 1] passport and [Country 2] identification card, which record his date of birth, [I] am satisfied that his date of birth is in [year]. I am satisfied that at the time of application, namely 7 September 2018, the visa applicant was aged [age]. Accordingly the visa applicant met the requirements of reg 1.14(a)(i) at the time of application.

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

19. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Based on the evidence of the review applicant and the visa applicant, the Tribunal is satisfied that the visa applicant did not have a spouse or de facto partner at the time of application. Accordingly, the visa applicant met the requirements of reg 1.14(a)(ii) at the time of application.

    Relative – reg 1.14(a)(iii)

20. 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. The Tribunal is satisfied that the review applicant is an Australian permanent resident, who is usually resident in Australia at the time of application, and has since been granted Australian citizenship. The Tribunal is satisfied based on the identification documents and the DNA report that the visa applicant is a relative of the Australian permanent resident, namely his brother, and therefore a close relative is defined by reg 1.03.  Accordingly, the visa applicant met the requirements of reg 1.14(a)(iii) at the time of application.

    No parental care – reg 1.14(b)

21. 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.

22. The visa applicant recorded in the application for the visa that the country of current residence of both his father and mother was unknown. This information is provided in the application form which is dated 22 August 2018.

23. The Tribunal is satisfied that the visa applicant provided a form 54 to the Department which is signed and dated 14 June 2023 and recorded that his parents, his two sisters and himself resided in [Country 2]. In the form of the visa applicant provided the addresses where his parents, his two sisters and he resided in [Country 2].

24. The Tribunal accepts the evidence of the visa applicant and the review applicant that the visa applicant travelled from [Country 1] to [Country 2] with his mother and older sister N in 2012. The visa applicant’s father subsequently joined the visa applicant and his mother and sister. The Tribunal accepts that the visa applicant’s older sister N has since married and resides in [City 1] with her husband. The visa applicant’s other sister, M, remained in [City 2], residing with an uncle as she was studying. M subsequently moved to [Country 2] when she was given a scholarship to study [at] a university in [City 1].

25. The Tribunal accepts the evidence of the visa applicant and the review applicant that in April 2018 their parents decided to travel back to [Country 1]. The Tribunal accepts that this was meant to be a journey of a couple of months, for their parents to visit the provinces in [Country 1] where they had connections.

26. The Tribunal accepts the evidence of the visa applicant and the review applicant that they lost contact with their parents. At the time of application in September 2018, the visa applicant and the review applicant did not know whether their parents had been killed or were still journeying and trying to return to [Country 2]. The Tribunal accepts that the situation in [Country 1] was volatile and dangerous for the visa applicant’s parents. The Tribunal accepts that the visa applicant and the review applicant and their sisters had a substantive basis for fearing their parents would not return.

27. The Tribunal is satisfied that when the visa applicant recorded in the application form that the country of residence of his father and mother at the time of the application was unknown, was credible and truthful information.

28. The Tribunal is satisfied that the visa applicant went to live with his maternal uncle when his parents were travelling, and remained staying with his maternal uncle when his parents were not able to be contacted.

29. The evidence of the visa applicant and the review applicant is that their parents returned after eight months. The Tribunal accepts that the visa applicant’s parents returned to [Country 2] at the end of 2018. The evidence of the visa applicant and the review applicant is that their parents had to enter [Country 2] unlawfully when they returned.

30. The Tribunal accepts the evidence of the visa applicant and the review applicant that the visa applicant chose to remain residing with his maternal uncle, after his parents returned to [Country 2], and lived with his maternal uncle until he died, approximately three years ago. The evidence of the visa applicant and the review applicant is that the visa applicant has since then resided on his own and has not returned to live with his parents.

31. The Tribunal had received submissions in relation to medical conditions of the visa applicant’s parents and has considered these medical reports and certificates in relation to whether the visa applicant’s parents were permanent incapacitated at the time of application.

32. The Tribunal are satisfied based on a medical report dated 7 October 2023 that the visa applicant’s father had suffered heart failure into heart attacks and needed to take care. The Tribunal is satisfied based on an undated medical report that the visa applicant’s father had suffered from heart ailment for 10 years and suffered heart attacks on two occasions and was unable to work and earn an income and needed support and care. The Tribunal has concluded that the visa applicant’s father has suffered heart attacks and has an ongoing heart condition. The Tribunal is not satisfied, based on the fact the visa applicant’s father was travelling to [Country 1] at the time of application, that there is medical evidence that the visa applicant’s father was permanently incapacitated and unable to care for the visa applicant at the time of application. The Tribunal is not satisfied the medical reports are evidence the visa applicant’s father is permanently incapacitated.

33. The Tribunal received submissions prior to the hearing in relation to the medical condition of the visa applicant’s mother including a report from the Welfare Department dated 3 September 2022 that advised she had a medium physical disability based on the certificate of the medical commission of the welfare department. The Tribunal received a report from a neurologist dated 25 February 2024 certifying the visa applicant’s mother had a [medical condition and had suffered complication] for a period of 15 years. The report advises that due to damage to the visa applicant [nerves] over the previous four years she has been unable to perform daily personal hygiene routines. The tribunal is not satisfied this report indicates the visa applicant’s mother was permanently incapacitated at the time of application, and further is satisfied that the evidence of the visa applicant’s mother was travelling to [Country 1] at the time of application is evidence that she was not permanently incapacitated at that time.

34. The Tribunal has considered the medical reports provided, and accepts that at the time of application the visa applicant’s mother had suffered from the pain [in] her back for several years, and the visa applicant’s father had suffered heart attack and an ongoing heart condition. The Tribunal accepts that the visa applicant’s parents had these conditions, but is not satisfied that either the visa applicant’s mother or the visa applicant’s father was unable to care for the visa applicant because of a permanent incapacity. The Tribunal is satisfied that at the time of application the visa applicant’s parents were both able to travel and undertake the difficult return journey from [Country 2] to [Country 1]. The Tribunal is not satisfied that the visa applicant’s parents were permanently incapacitated from providing care for him at the time of application.

35. The Tribunal accepts the evidence of the review applicant and the visa applicant, that at the time the application for the visa was made they did not know where their parents were, or even if they are alive. However, the Tribunal has assessed the evidence, which includes that the visa applicant and the review applicant knew that their parents had set off to travel to [Country 1], and that the journey to, and arrival in, [Country 1] was fraught with danger and the possibility that contact between the travelling parents and their children in Australia and in [Country 2] may be jeopardised. The Tribunal has assessed the evidence that whilst the visa applicant and review applicant did not know exactly where their parents were, or what circumstances they were in, they were aware that the parents were travelling and had intended to return to [Country 2]. The Tribunal accepts the applicant’s parents returned to [Country 2] some months later than expected, and their children had thought they might not see the parents again. The Tribunal accepts that the return of the parents of the visa applicant and the review applicant was appropriately described in the hearing as miraculous. The Tribunal is satisfied that the visa applicant’s parents returned to [Country 2] within months of the application for the orphan relative visa being made. The Tribunal finds that although the whereabouts and circumstances of the visa applicant’s parents was not certain at the time of application, the fact they were travelling and returned to [Country 2], as planned, is highly relevant to the assessment of whether they meet the definition of unknown whereabouts.

36. The Tribunal is satisfied that the time of application the visa applicant and the review applicant were aware their parents had set off to travel to [Country 1], and at that time did not know of their parents’ circumstances. The evidence of the visa applicant and the review applicant is that their parents managed to return safely to [Country 2], at the end of 2018 after being away for eight months. The Tribunal has concluded that the visa applicant and review applicant had a general knowledge of where their parents may be, although they were unable to contact them, and feared for their safety, until their parents returned.

37. The Tribunal acknowledges that if the parents of the visa applicant and review applicant had not returned and the family did not receive any news of the parents, the visa applicant may have met the definition of orphan relative, in that his parents may have been of unknown whereabouts at the time of application and continued to have been of unknown whereabouts. However the parents of the visa applicant returned to [Country 2] after being away for eight months, and within a few months of the time of application, and in these circumstances, the Tribunal is not satisfied that the visa applicant is an orphan relative and cannot be cared for by his parents who are of unknown whereabouts at the time of application.

38. The Tribunal has considered all the evidence before it, and is not satisfied that the visa applicant could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts at the time of application.

39. Accordingly, the visa applicant does not meet the requirements of reg 1.14(b) at the time of application.

    Best interests – reg 1.14(c)

40. 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. The Tribunal accepts the evidence of the visa applicant that living in [Country 2] is very hard, and each day is about survival. The Tribunal accepts the oral evidence of the review applicant and the visa applicant, that the visa applicant was the victim of a stabbing in the street approximately three years ago. The Tribunal has noted the evidence of the visa applicant who stated there is no reason it would be better for him to stay in [Country 2], and that he dreams of an existence where he can be what he wants to be. The Tribunal is satisfied there is no compelling reason to believe the grant of the visa would not be in the best interests of the visa applicant. Accordingly, the visa applicant meets the requirements of reg 1.14(c) at the time of application.

    Conclusions

1. Given the findings above, that the visa applicant does not meet the definition of reg 1.14(b), the Tribunal finds that the visa applicant does not meet the requirements of cl.117.211.  

2. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. The visa applicant does not meet the criteria for the other child visa subclasses. These alternative options were discussed in the hearing. There have been no claims advanced in respect of the other visa subclasses in Class AH.

   DECISION

3. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

   Margie Bourke
   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.