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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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)   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 interest of the applicant.

6. The delegate refused to grant the visas because the applicants did not meet cl.837.213(a) of Schedule 2 to the Regulations, because they did not meet the definition of orphan relative at r.1.14(b). Insufficient evidence was provided to satisfy the delegate that the applicants’ mother in the Solomon Islands was, as claimed, permanently incapacitated.

7. The applicants appeared before the Tribunal on 18 March 2021, by MS Teams Video, to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and two of the applicants’ aunts, one in Brisbane and one in the Solomon Islands.

8. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

9. At the outset of the hearing, the Tribunal advised the parties of a jurisdictional issue arising from the review applications, because they were combined, with both the visa applicants listed as review applicants as well as visa applicants. The Tribunal advised the parties that it was concerned that, because the primary visa applications were lodged separately, in accordance with the requirements for this visa as set out in Schedule 1 to the Regulations, the review applications are not able to be combined.  

10. The sponsor, the applicants’ grandmother, stated that she lodged the review application in good faith, on the understanding that a combined review application was possible. The representative stated that he did not accept that the applications could not be combined. He stated that he was advised by the Tribunal’s Registry staff at the time of lodgement that a combined application was possible, and that at no time, prior to the hearing, had he been told it was not possible.

11. The Tribunal accepts that the parties believed that they were able to lodge a combined review application. The Tribunal notes, however, that while the Tribunal provides general advice about the review process, it does not provide legal advice to applicants and potential applicants regarding their review applications.

12. The Tribunal advised the parties that it would give further consideration to the jurisdictional issue. The hearing proceeded on the understanding that the issue before the Tribunal in this case was the same for both applicants, and, if a combined application was not possible and the Tribunal decided to remit one of the applications to the Department for further consideration, it would seek advice from the parties as to which application it would remit.

13. 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

14. 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?

15. 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.

16. ‘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.

17. 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)

18. 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)

19. 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)

20. 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.

21. Birth certificates were provided showing that the applicant is the grandson of the Australian relative. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

22. Regulation 1.14(b) requires that the 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. A death certificate was provided, certifying that the applicant’s father died in the Solomon Islands on 16 June 2016. Regarding the applicant’s mother, according to a written submission by the representative dated 28 January 2021, following the death of her husband, she fell into depression ‘from which she has never recovered successfully’, and ‘she has essentially become an itinerant alcoholic without a fixed place of abode’. The representative further submitted that the applicant’s mother ‘abandoned’ the children, causing the grandmother (the sponsor) ‘to take on the responsibility for their care when she brought them to Australia’. He advised that the applicant and his sister now live with an aunt who also lives in Brisbane, because it is more convenient for their schooling. 

24. The following documents were provided to the Tribunal in support of the claim that the applicant’s mother is ‘permanently incapacitated or of unknown whereabouts’:

    ·A statutory declaration signed in January 2021 by the applicant’s grandmother, in which she declared the following. The applicant and his younger sister were timid, unable to read and write like other children in their age group because they did not attend school on many occasions, and were lacking in supervision and nutrition. It was the dying wish of her son, the applicant’s father, that she take care of the children. She brought the two oldest, with a view to them taking care of their two younger siblings in the years ahead. The applicant’s mother has not been able to cope with the death of her husband, and has become a severe alcoholic. The applicant’s mother has undertaken some counselling sessions, but has not recovered. The applicant and his sister are thriving with the love and guidance they are receiving in Australia.

    ·A letter from the Public Solicitor’s Office in Honiara, signed by a senior legal officer in the family protection unit on 27 June 2017, stating that she was ‘in a process of filling an application in court’ on behalf of the sponsor for sole custody of the applicant and his three siblings.

    ·A statement sworn in the Central Magistrate Court of Solomon Islands on 15 August 2017 by the applicant’s grandmother in support of her custody application, in which she stated:

    -    A few months after my son died, [the applicant’s mother] returned to her home village in Munda leaving the four children in my custody;

    -    Two of the elder children are residing with me in Australia while the two younger children are residing with my daughter in Honiara, whilst I am sorting their visa;

    -    [The applicant’s mother] is unemployed and she is unable to take care of the children on her own … she has no means of income to cater for the welfare of the children … she indicated to us that she is willing to allow us to take care of the children;

    -    I am fully aware that these children will have to maintain their bond and relationship with their mother, and I will make sure that the children will always have reasonable access to their mother whenever possible; and

    -    I believe that it is for the best interest of the children to be in my custody … I am confident that they will benefit more by the education system here and other benefits that they would not have if they remain with their mother in Solomon Islands.

    ·A statutory declaration signed on 19 January 2021 by the applicant’s aunt who lives in Brisbane, in which she stated:

    -    The applicant and his sister have been living with me for the last three years. Their mother had essentially abandoned the children due to her mental health problems suffering from depression and alcoholism; and

    -    The last information I have about [the applicant’s mother] is that she is hopeless and has abandoned all hope of looking after herself … I believe that she does not have the capacity to look after the children including the two who are being cared for by my sister in the Solomon Islands.

    ·A statutory declaration signed on 18 January 2021 by the applicant’s aunt who lives in the Solomon Islands, in which she stated:

    -    When my brother passed away, my sister-in-law was unable to care for the 4 children. She started drinking heavily. At times I had to take the children away from her …; 

    -    The last time [the applicant’s mother] contacted the two young children was in June 2018 … Police told me she was involved in a car accident resulting in a death … she absconded the accident scene … I understand that she continues to struggle with alcohol, that she has no permanent place to live and is unable to support herself; and

    -    I would not be able to afford to look after [the applicant and his sister] if they were to return to Honiara.

    ·A statutory declaration of the applicant, signed on 20 January 2021, in which he states:

    -    Returning to the Solomon Islands means I wouldn’t be able to finish my schooling here. I would lose the support of my friends … I am also heavily involved with soccer;

    -    My mother is not able to look after us as she does not have a job or a house and I have been informed by my (paternal) grandmother that she has a very serious problem with alcohol consumption and I would have nowhere to go to;

    -    Because I am now 18, I would need to look after my sister who is presently aged 16 years. It will be difficult for me to find accommodation and to care for my sister as I will not be able to rely upon my aunt or any other person on the Solomon Islands especially my mother; and

    -    My mother because of her mental emotional and addiction to alcohol has essentially given up responsibility to care for us … we are essentially left as orphans and have developed strong bond with my uncle and aunt with whom we live in Brisbane.

    ·A letter titled ‘Serving as a Counselling Report for [the applicant’s mother]’, signed on 28 March 2018 by the Country Manager, Solomon Islands, of Empower Pacific, an agency that ‘offers counselling services and Social Work’. This states:

    -    The case was referred to Empower Pacific for counselling assessment regarding client’s current mental state;

    -    Client was assessed on her level of Grief and Loss, client appeared to have been still going through distraught for the passing of her husband. Talk of depression with symptoms of sleeplessness, experience trembling (E.g. in her hands), nervous energy that drives her to lose hope about her future. Client has identified that she would not be a capable mother as she would like to deal with her husband’s loss through continues counselling support; and

    -    On behalf of [the applicant’s mother], she would like to request for this matter to be highly considered for children’s stability and support.  

25. At hearing, the sponsor advised that her application for custody of her grandchildren was still being processed, and that ‘things happen slowly in the Solomons’. She advised that the applicant and his sister in Australia are now living with their aunt in Brisbane. The applicant stated that neither he nor his sister have returned to the Solomon Islands to visit family since their arrival in Australia in December 2016, and that the last time they saw their mother was in December 2016.

26. The Tribunal asked the applicant how he and his sister have maintained contact with their mother. He stated that they did this by Facebook. His younger sister stated that they did not know ‘her whereabouts’ at present. The Tribunal asked the applicant’s aunt in the Solomon Islands when she last saw the applicant’s mother, her sister-in-law. She advised that the applicant’s mother lives on Munda Island, but travels around and comes to stay with them in Honiara for a week or two at a time, to be with her younger children. She stated that during the COVID-19 pandemic, she sent the two younger children to stay with their mother on Munda Island, but that they only stayed there for about a month because the applicant’s mother is unreliable, and the children’s schooling and other care needs were not being properly addressed.

27. At hearing, the Tribunal put to the parties that in a statutory declaration signed on 12 April 2017 (quoted also in the delegate’s decision, a copy of which was provided to the Tribunal), signed by the applicant’s mother for the purpose of ‘granting full custodian’ of her two oldest children to the sponsor, she declared:

    I am without a job and have no formal education and have found it very difficult to educate and to take care of my children.

28. The applicant’s mother did not declare in her statutory declaration that she could not care for the applicant because she was permanently incapacitated. The Tribunal put to the parties that the Department had, several times, provided the parties time to provide information and evidence that the applicant’s mother is in fact permanently incapacitated. The Tribunal put to the parties that on 23 May 2018 (as quoted in the delegate’s decision), the Department sent the applicant a specific, detailed requested to provide, regarding his mother:

    Details of her permanent incapacity. Please provide a medical report from your mother’s doctor/specialist. The report should describe:

    -The nature of your mother’s disability and when it was diagnosed, and

    -The nature and degree, if any, of incapacity caused by the disability, and

    -Whether the medical opinion supports a view that the incapacity is permanent (and if so why), and

    -Available treatment (if any) for the disability, and

    -Prognosis.

29. No medical evidence was provided to the Tribunal that the applicant’s mother is permanently incapacitated. The Tribunal put to the parties that the fact that they had not provided such evidence suggested that the applicant’s mother is not in fact permanently incapacitated.

30. The applicant’s aunt in the Solomon Islands stated that the applicant’s mother ‘has an impairment around the emotional, financial level’, and that ‘you can’t raise children on love alone’. She stated that the applicant’s mother may not have a permanent disability, but ‘she was unable to keep the children safe’, for the reasons that she is uneducated, has insufficient income, and drinks too much. The applicant’s aunt stated that the applicant’s mother was young when she married her brother. The sponsor stated that her son asked her to care for the children; that the children needed a safe home, education and love; and for that reason, she brought the applicant and his sister to Australia. 

1. The representative, in a closing submission, argued that there is no definition of ‘permanent incapacity’ in the legislation, and that, in this case, evidence other than medical records should suffice. He argued there was evidence, in the written submissions and statements provided, and in the testimony given at hearing, that the applicant’s mother was unable to care for her children because she was permanently incapacitated by alcohol, her itinerant and irresponsible nature, and drugs.

2. The Tribunal does not accept the representative’s submission. As noted at paragraph 22, ‘permanent incapacity’ has been held in case law to refer 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. A.A. In Acosta v MIBP [2016] FCCA 1276, the Court found that an alcoholic parent and a parent who is neglectful in feeding a child do not on their face fall within the ordinary meaning of the concept ‘permanently incapacitated’. The Court held that parents may be dysfunctional in their childcare or neglectful, but that is not the same as being ‘permanently incapacitated’. Accordingly, an applicant cannot be considered an orphan merely because his or her parents have abrogated their responsibility to provide care or fulfil their parental role.

3. The Tribunal accepts that the applicant wants to stay in Australia; that the parties believe the applicant and his sister are receiving a better education in Australia than they would in the Solomon Islands; that the parties believe the applicant and his sister are receiving better-financed home care and nurturing with their grandmother and aunt in Australia than they would if they remained under the care of their mother; and that the applicant’s mother has agreed for them to stay in Australia.

4. Regulation 1.14(b), however, requires that an applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal does not accept that the applicant can be considered an orphan because his mother has, as claimed by the parties, abrogated her responsibility to provide care or fulfil her parental role. The Tribunal does not accept that the applicant can be considered an orphan because his paternal grandmother and aunts perceived he was not receiving a standard of care they deemed appropriate for their grandson and nephew. The Tribunal does not find that the applicant’s mother is permanently incapacitated or dead.

5. Further, while the Tribunal notes the parties’ claims that the applicant’s mother is ‘of itinerant nature’, and the applicant’s sister’s claim at hearing that she did not know where her mother was, the Tribunal does not accept that the applicant’s mother is of unknown whereabouts. The applicant’s aunt in the Solomon Islands stated that the applicant’s mother lives on Munda Island; the applicant’s aunt was able to contact the applicant’s mother and send the younger children to stay with her during the COVID-19 pandemic; the applicant’s aunt stated that the applicant’s mother comes to stay with her to spend time with her youngest children; and the applicant stated that he has maintained contact with his mother on Facebook.

6. The Tribunal does not find that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

7. Accordingly, r.1.14(b) was not met at the time of application and continues not to be met at the time of decision.

8. Clause 837.213(b) is met if, at the time of application, the applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

9. No claim was made, or evidence provided to the Tribunal that the applicant has been adopted by the sponsor. Accordingly, cl.837.213(b) is not met, and continues not to be met at the time of decision.

10. Given the findings above, cl.837.213 is not met.

11. The Tribunal finds that the applicant continues not to satisfy the criterion in cl.837.213, and this is not only because the applicant has turned 18. It follows that cl.837.221 is not met.

12. For these reasons, the criteria for the grant of a Subclass 837 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 802).

    Does the Tribunal have jurisdiction in the case of the second-named applicant?

13. Regulation 4.12 sets out when review applications to the Tribunal may be combined. Only r.4.12(2) is applicable in this case. This provides that the review applications may only be combined if the primary applications were combined as permitted by Schedule 1 (or by r.2.08, 2.08A, or 2.08B, none of which are applicable in this case).

14. In this case the review applicants, the applicant and the second-named applicant, lodged separate visa applications. As the applications were not combined at the primary level, they don’t satisfy r.4.12(2).

15. The Tribunal does not have jurisdiction in the matter of the second-named applicant.

    DECISION

16. 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 Millbank
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    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.