Bucha (Migration)

Bucha (Migration) [2018] AATA 2060 (21 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Samitta Bucha
CASE NUMBER:  1800975
DIBP REFERENCE(S):  CLF2017/252
MEMBER:Ann Duffield
DATE:21 May 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 837 (Orphan Relative) visa:
·cl.837.213 of Schedule 2 to the Regulations; and
·cl.837.221 of Schedule 2 to the Regulations.

Statement made on 21 May 2018 at 2:04pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 837 (Orphan relative) – Parent dead, permanently incapacitated or whereabouts unknown – Step grand-daughter of the sponsor – Incarceration of the applicant’s mother – Age of applicant – Hypothetical scenarios – Applicant’s best interest
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule cls 837.111, 837.213, 837.221
CASES
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 3 January 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 January 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.
The delegate refused to grant the visa because the applicant did not meet cl.837.213 of Schedule 2 to the Regulations because the applicant did not meet regulation 1.14(b) as one of the applicant’s parents is not either dead, permanently incapacitated or of unknown whereabouts.
The applicant and her sponsor appeared before the Tribunal on 15 May 2018. The applicant is only six years old so the Tribunal took evidence from the applicant’s sponsors, her maternal grandmother and step-grandfather.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant can be cared for by one of her parents who is not either dead, permanently incapacitated or of unknown whereabouts.
The parties evidence at the hearing was compelling and persuasive. The Tribunal found the parties to be open and honest in their dealings with the Tribunal. For the following reasons, the Tribunal accepts their claims.
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 step-grandfather is the relevant Australian relative.
For the reasons below, the applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the applicant is an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.837.213(a) is met, 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.
The delegate was satisfied that the applicant and the sponsor are related and the Tribunal, having reviewed the documents and entirety of the evidence is equally satisfied that the applicant is the step-grand-daughter of the sponsor who is the Australian Relative. The applicant’s maternal grand-mother is the wife of the sponsor. The Tribunal is satisfied that the documentation available to it and the department supports this claim. The applicant is the step grand-daughter of the sponsor and his wife (the applicant’s maternal grandmother), who is an Australian citizen and usually resident in Australia.
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)
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.
The delegate refused the application because the applicant’s biological mother is alive although they accepted that the identity and whereabouts of the applicant’s biological father are unknown.
The applicant’s mother was convicted of drugs related offences on 27 January 2016 and received a sentence of 9 years imprisonment. That sentence was subsequently reduced to 4.6 years meaning that the applicant’s mother will be released towards the end of 2020.
During the scheduled hearing both the sponsor and his wife told the Tribunal that the applicant’s mother told them that she wanted nothing to do with the child and there was no one else to look after her.
The Tribunal asked the sponsor where the applicant had been living during the times her mother was incarcerated. The sponsor told the Tribunal that the applicant’s mother had not been incarcerated before but lived as a prostitute taking and dealing drugs. He said that the applicant’s life in such circumstances was unsettled and she was horribly neglected and left alone for much of the time.
The sponsor told the Tribunal that the applicant had been looked after by the woman who had raised her mother. It transpired in the course of the hearing that the applicant’s maternal grandmother was unable to look after the applicant’s mother and she was fostered by a family at an early age. That family however was now estranged from the applicant’s mother and had told them that they could not and would not look after the applicant as they were too old.
The applicant’s grandmother travelled to Bangkok on 2 February 2016 to look after the applicant. She rented an apartment and looked after the applicant from that time until she returned to Australia in October 2016, bringing the applicant with her on a tourist visa. The applicant’s step-grandfather also visited both parties in Bangkok in October 2016 and has provided financial support for the applicant since the time the applicant was born and therefore since before her mother’s incarceration.
Asked if they obtained permission to take the applicant from Thailand the sponsor said that the applicant’s mother had signed her passport papers and visa application form and there was an agreement between them that the applicant would not return to Thailand and that her mother did not want her anymore. Asked by the Tribunal if there were any formal arrangements to that effect or a formal adoption he said there was not. The Tribunal put to the sponsor that the lack of such an agreement could pose a problem for them in relation to this application separate from the reason for the review currently before the Tribunal. The sponsor said that it had been impossible for them to begin formal adoption arrangements because of the incarceration of the applicant’s mother. He said that it was their intention to adopt the applicant as soon as those arrangements could be made.
The Tribunal has considered the sponsor’s submissions in regard to the incapacity of the applicant’s biological mother which, in short, is that the drug taking habits of the applicant’s mother are permanent and she will never be in the position to look after the applicant.
In that case referred to in paragraph 15, the court concluded that there is no reason to give the expression “permanently incapacitated” in reg 1.14 any meaning other than its ordinary meaning which can include but is not necessarily limited to, physical or mental infirmity. His Hon. Merkel, J held that;
“In my view, the ordinary meaning in the context in which the words appear in reg 1.14, is:
·“permanent” means indefinite or not temporary;
·“incapacitated” means not having the power, ability or possibility of caring for the child.”
His Honour went on to state that
“Accordingly, the question of fact for the IRT in the present case was whether, upon the material before it the IRT was satisfied that the grandson could not be cared for by his mother because she indefinitely lacked the capacity (ie the power or ability) to care for the child.”
In the present matter it is not in dispute that the applicant’s father’s identity and whereabouts is unknown to the applicant and her family members.
In relation to the applicant’s mother the following facts are not in dispute:
a.    She is currently incarcerated and all other things being equal, she will not be released until August 2020 – some two years hence.
b.    The applicant has no maternal relatives in Thailand to look after her and her mother’s foster family have insisted that they are in no position to.
c.    The applicant’s biological father is unknown.
d.    The applicant therefore has no paternal or maternal relatives in Thailand who can look after her.
e.    She is six years old and has been living in Australia with her maternal grandmother and step-grandfather for nearly two years.
f. Her maternal grandmother has been married to an Australian citizen for almost nine years and it would cause them both great personal and financial hardship to have to leave Australia to live with the applicant in Thailand in the hope that the applicant’s mother, upon her release, will agree to look after her.
In considering the “incapacity” of the applicant’s mother, it seems to the Tribunal that whilst her incarceration may not be indefinite, in that all other things being equal she will be released in August 2020, there is no evidence that she wants to or is willing to change the behavior that had her incarcerated in the first place. The Tribunal understands that this is a hypothetical scenario and one that the delegate has rejected, however it seems equally hypothetical that the applicant’s mother will seek to reclaim the parental rights she has extinguished in favor of her own biological mother, even though that abrogation is not formally recognized by a court. That is a matter for the department to consider.
The Tribunal has also considered the age of the applicant. At six years old with no-one to return to in Thailand, it is difficult to foresee her circumstances. Will she be taken into state care? Will she be abandoned to the streets? Will she be adopted by a loving caring family in Thailand (as opposed to a loving caring family in Australia?) Again, all hypothetical scenarios not considered by the delegate, who did not turn his mind to what would happen to a six year old child in these circumstances.
The Tribunal is therefore not satisfied that the applicant can be cared for by her mother either now or in the reasonably foreseeable future because she indefinitely lacks the capacity to care for the child.
Accordingly, r.1.14(b) was not met at the time of application and continues to be met at the time of decision.
Best interests – r.1.14(c)
The Tribunal is also satisfied that it is in the applicant’s best interests to live in Australia with her maternal grandmother and step grandfather as they have cared almost two years. Further the applicant has settled well into Australia and into her Australian school and wishes to live as a member of her family unit. 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 applicant and therefore he meets the requirements of r.1.14(c).
CONCLUSION
Given these findings, the Tribunal finds that the correct and preferable decision is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 837 (Orphan Relative) visa:
·cl.837.213 of Schedule 2 to the Regulations; and
·cl.837.221 of Schedule 2 to the Regulations.
Ann Duffield
Senior 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.

[2018] AATA 2060

21 May 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Remedies

Statutory Construction

Procedural Fairness