Acosta v MIBP

[2016] FCCA 1276

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACOSTA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1276

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Child Migration (Class AH) visa – whether the Tribunal misapplied the regulations – whether the Tribunal misconstrued the definition of “close relative” – whether the Tribunal misconstrued the definition of “permanently incapacitated” – whether the Tribunal failed to take relevant considerations into account – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476
Migration Regulations 1994, regs.1.03, 1.14, Sch.2, cl.117.211

Applicant: DIVA ROSA CARRASCAL ACOSTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 419 of 2015

Judgment of: Judge Street

Hearing date: 25 May 2016

Date of Last Submission: 25 May 2016

Delivered at: Sydney

Delivered on: 25 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Thomas

Solicitors for the Applicant: Radin Legal

Solicitors for the First Respondent: Ms Milutinovic
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 419 of 2015

DIVA ROSA CARRASCAL ACOSTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect a decision of the Tribunal made on 6 October 2015, affirming a decision of the delegate not to grant the applicant a Child Migration (Class AH) visa. On 17 November 2012, the review applicant, being the sponsor, applied for a visa as sponsor of her grandniece, being the visa applicant. The visa applicant is a citizen of Columbia born on 18 September 2008. The sponsor was a citizen of Australia who was born in Columbia.

2. In support of the visa application, the applicant provided a range of documents including a certified copy of a Columbian Family Court order evidencing that the sponsor has parental responsibility for the visa applicant and a family social report about the visa applicant’s parents.  The Tribunal identified the requirements for a 102 adoption visa which relevantly included the sponsoring parent must have resided overseas for at least 12 months at the time of the application.

3. The Tribunal identified the criteria for the subclass 117 visa and in particular, the meaning of “orphan relative” as defined in reg.1.14.  The Tribunal referred to the definitions of “relative” and “close relative” in reg.1.03.  The delegate refused to grant the visa on the basis that the visa applicant did not meet the criteria under subclass 102 as she had not been adopted by the sponsor according to the laws of Columbia.  Further the delegate was not satisfied the visa applicant met the criteria for a subclass 117 as her parents are not incapacitated, deceased or their whereabouts unknown.

4. Relevantly, the Tribunal identified that the visa applicant’s father drinks and that is why it was said he was incapable of providing care.  The Tribunal noted that the mother does not drink, but it was said that she does not feed the children properly.  The Tribunal noted that the visa applicant has other siblings that live with her parents, at least intermittently. It was in those circumstances that the Tribunal made a finding that it was not satisfied that the visa applicant’s parents were dead, permanently incapacitated or of unknown whereabouts.

5. Accordingly, the Tribunal found that the requirements of reg.1.14(b) were not satisfied and that the requirements of cl.117.211 could not be met in respect of the subclass 117 visa. The Tribunal noted cl.117.211(b) required the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative.

6. The Tribunal found that the visa applicant was not an orphan relative at the time of the application and found that cl.117.211(b) was not met. For those reasons, the Tribunal found that the subclass 117 visa was not met.

7. The grounds of the application are as follows

   1. The Tribunal made an error of law and thus fell into jurisdictional error in failing to take account of cultural considerations current in the nation of Columbia which if followed would bring the relationship between the applicant a Rosa CarrascalG Acosta and the child Maria Carolina Carrascal Hoyos within the definition of "relatives" for the purposes of Part 117 of Schedule 2 to the Migration Regulations 1994 (at paragraph [13].

   2. The Tribunal made an error of law and thus fell into jurisdictional error in failing to find that her biological parents are permanently incapacitated within the meaning of Regulation 1.14 of the Migration Regulations 1994.

   3. The Tribunal made an error of law and thus fell into jurisdictional error in failing to take account of the provisions of the criteria relevant to Visa Sub-Class 102, and in particular of of cultural considerations current in the nation of Columbia which if followed would lead the decision maker to conclude that the applicant Rosa Carrascal Acosta was in truth an adoptive parent of the child Maria Carolina Carrascal Hoyos within the meaning of the criteria for Visa Sub-Class 102.

8. In relation to ground 1, Mr Thomas of counsel submitted that the purpose of the visa should inform the construction of the meaning of “close relative” and “relative” and that a grandaunt could fall within that meaning provided in the regulations.  The regulation does not identify an inclusive non-exhaustive meaning but defines the persons who are relatives or close relatives.  There is no ambiguity in the persons identified and they do not include a grandaunt.  There is no error of law by the Tribunal in holding that the sponsor did not fall within the meaning of “relative” for the purpose of part 117 of Schedule 2 of the Migration Regulations 1994.  The Tribunal said that a great aunt is not a relationship that comes within that definition.  The Tribunal is correct.  Ground 1 fails to make out any jurisdictional error.

9. In relation to ground 2, Mr Thomas conceded that he could not submit that there was no evidence that could support the adverse finding by the Tribunal, a concession properly made, but rather argued that the Tribunal had misapplied the meaning of the legislative term “incapacitated”.  The Tribunal’s reasons are not to be read with a keen eye for error.  There is nothing in the Tribunal’s reasons to support the proposition that the Tribunal misunderstood the concept of permanently incapacitated. 

10. On the face of the evidence before the Tribunal, it is apparent that the parents were not permanently incapacitated.  The adverse finding by the Tribunal was clearly open.  On the material before the Tribunal, that finding cannot be said to lack any evident and intelligible justification.  There is no error of law in the Tribunal’s adverse finding of fact that the parents were not permanently incapacitated. There is nothing to support a misconstruction by the Tribunal of the term “permanently incapacitated”.  Living parents who have children living with them may be dysfunctional in their child care or indeed neglectful but that is not the same as being permanently incapacitated. An alcoholic parent and a parent that is neglectful in feeding a child do not on their face fall within the ordinary meaning of the concept permanently incapacitated. Ground 2 fails to make out any jurisdictional error.

11. Ground 3 is in substance an impermissible challenge to the adverse finding of fact made by the Tribunal and it was common ground that the sponsor applicant did not meet an essential criterion for that visa in that she had not resided overseas for 12 months. The cultural considerations are not capable of overcoming the mandatory criteria for a Visa Sub-Class 102. The Tribunal made not error of law by the failure to find the applicant me the criteria for a Visa Sub-Class 102. The 12 month residence overseas criterion was not made out and accordingly the applicant was not entitled to a Visa Sub-Class 02. Ground 3 fails to make out any jurisdictional error.  The application is dismissed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 May 2016