Bennett (Migration) - [2021] AATA 1351

Bennett (Migration) [2021] AATA 1351 (23 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jordan Hugh Bennett
Miss Fiona Clara Bennett
CASE NUMBER:  1821645
DIBP REFERENCE(S):  CLF2017/61438; CLF2017/61439
MEMBER:Adrienne Millbank
DATE:23 March 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the first-named applicant a Child (Residence) (Class BT) visa.
The Tribunal has no jurisdiction in the case of the second-named applicant.

Statement made on 23 March 2021 at 12:32pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan relative) – ‘orphan relatives’ of an Australian relative – no parental care – applicant’s mother – itinerant alcoholic without a fixed place of abode – whether permanently incapacitated – medical evidence requested – dysfunctional or neglectful care – decision under review affirmed
MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan relative) – jurisdictional issue – combined review application – combination at the primary level – No jurisdiction in the matter of the second-named applicant
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.14, 4.12; Schedule 2, cls 837.213
CASES
Acosta v MIBP [2016] FCCA 1276
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639
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 Immigration on 10 July 2018 to refuse to grant the applicants Child (Residence) (Class BT) visas under s.65 of the Migration Act 1958 (the Act).
The applicants are citizens of the Solomon Islands, siblings, born on 18 March 2002 and 5 July 2004. They were aged 14 and 12 at the time of application, and are aged 19 and 16 at the time of decision. Their father died in the Solomon Islands in June 2016, and the applicants claim their mother is incapable of looking after them. The applicants were brought to Australia by their paternal grandmother, the sponsor, an Australian citizen, on Visitor (Subclass 600) visas, on 13 December 2016. Since arriving in Australia, the applicants have lived with the sponsor and their aunt in Brisbane.
The applicants applied for the visas on 31 August 2017. At that time, Class BT contained two subclasses: Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have been made in respect of the Subclass 837 visa.
The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.837.213. This requires that the applicants are orphan relatives of an Australian relative of the applicants, or are not orphan relatives only because they have been adopted by the Australian relative.
Orphan relative has the meaning set out in r.1.14. This states that an applicant for the 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)…

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 Bennett (Migration)

Details

AGLC: Bennett (Migration) [2021] AATA 1351
Case: [2021] AATA 1351
Decision Date: 23 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Residence) (Class BT) visa, subclass 837 (Orphan relative), in relation to an Australian relative. A second applicant was also involved, raising a jurisdictional issue concerning a combined review application.

The primary legal issues before the Tribunal were whether the first-named applicant qualified as an "orphan relative" of an Australian relative at the time of application and at the time of the decision, and whether the Tribunal had jurisdiction over the matter of the second-named applicant. To be considered an orphan relative, the applicant must meet specific criteria under the Migration Regulations 1994, including age, marital status, being a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and being unable to be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts, with no compelling reason against granting the visa in the applicant's best interests.

The Tribunal found that the first-named applicant met the age and marital status requirements. However, the core of the dispute centred on whether the applicant's mother, described as an itinerant alcoholic without a fixed place of abode, constituted a parent who was "permanently incapacitated" or of "unknown whereabouts" for the purposes of the orphan relative definition. The Tribunal concluded that the applicant was not an orphan relative of an Australian relative at the time of application, nor at the time of the decision, and therefore affirmed the decision not to grant the visa. Regarding the second applicant, the Tribunal determined it had no jurisdiction over that matter due to the nature of the combined review application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in the case of the first-named applicant (the applicant); and that it has no jurisdiction over the matter in the case of the second-named applicant.Consideration of claims and evidence The issue in the present case is whether the applicant is an orphan relative of an Australian relative. Is the applicant an orphan relative of an Australian relative? Clause 837.213 requires that at the time of visa application the applicant is an orphan relative of an Australian relative (cl.837.213(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl.837.213(b)). The 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.837.221. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.837.111. 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): r.1.03. In the present case, the applicant’s paternal grandmother is the relevant Australian relative. For the reasons below, the applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.837.213(a) is not met, and continues not to be met at the time of decision.Age – r.1.14(a)(i) Regulation 1.14(a)(i) requires that the applicant has not turned 18. The applicant’s birth certificate was provided, certifying he was born on 18 March 2002. He had not turned 18 at the time of application, and he does not meet the age requirement at the time of decision only because he has turned 18 (and 19). Accordingly, r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision. Spouse or de facto partner – r.1.14(a)(ii) Regulation 1.14(a)(ii) requires that the applicant does not have a spouse or de facto partner. The applicant confirmed at hearing that he is still in high school. He stated that he is in Year 12, and that next year he plans to get a job, in Australia, so that he can help support his two younger sisters who are still living in the Solomon Islands. There is no information before the Tribunal to indicate that the applicant has a spouse or de facto partner, and the Tribunal finds that he does not. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision. Relative – r.1.14(a)(iii) Regulation 1.14(a)(iii) requires the applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

Decision

Reasons for decision

The Tribunal does not have jurisdiction in the matter of the second-named applicant. DECISION The Tribunal affirms the decision not to grant the first-named applicant a Child (Residence) (Class BT) visa.The Tribunal has no jurisdiction in the case of the second-named applicant.Adrienne MillbankMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14 Orphan 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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