Bustami (Migration)

[2023] AATA 4176

Bustami (Migration) [2023] AATA 4176 (1 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Trans Adiguna Bustami

VISA APPLICANT:  Mr Reysya Ramadhan Nurwahhab

CASE NUMBER:  2316354

HOME AFFAIRS REFERENCE(S):          BCC2023/3663447

MEMBER:Stephen Conwell

DATE:1 December 2023

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 01 December 2023 at 6:23pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – applicant cannot be cared for by either parent because each is dead, permanently incapacitated or of unknown whereabouts – father deceased and mother’s mental health – mood swings and receiving treatment for depression – home country law limits medical practitioners from providing information to third parties – permanent incapacity requires that parent cannot care, not refusal, abandonment or unwillingness – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cl 117.213

CASES
Acosta v MIBP [2016] FCCA 1276
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 Home Affairs on 30 August 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 (the applicant) applied for the visa on 26 June 2023. 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 117.213 as was relevant at the time.

4. The delegate refused to grant the visa because the applicant did not meet cl 117.213 of Schedule 2 to the Regulations because the visa applicant did not meet the requirements of reg 1.14(b) (attached) in that the evidence did not establish the visa applicant could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

5. The review applicant (the sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. Having regard to the nature of the review and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing. The parties raised no objections as to conducting the hearing in this manner.

7. The sponsor participated in the hearing by video on 22 November 2023 to give evidence and present arguments

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

   Background

9. The applicant is a 16 year old boy who is the maternal nephew of the sponsor. In the visa application the sponsor stated the applicant’s mother  (the sponsor’s sister) was incapacitated and his father was deceased. A death certificate for the applicant’s father was not provided to the Department.

10. The sponsor is living in Australia and became an Australian citizen in 2014. He is the youngest of four children. The applicant’s mother is his eldest sister. His mother and three other siblings live on the family property comprised of the main house and an apartment block which the family built for possible rental and investment purposes. The applicant and his mother live together in one of the apartments.

11. Prior to hearing the applicant provided the following in addition to documents already held on file:

    ·     A copy of the death certificate pertaining to the applicant’s father;

    ·     A medical statement of the applicant’s mother’s medication regime;

    ·     Pre-hearing submission explaining why Indonesian law prevents doctors and other medical specialists from providing medical opinions to third parties, except under limited circumstances, such as pursuant to an order by an Indonesian court.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the orphan relative of an Australian relative.

    Is the applicant an orphan relative of an Australian relative?

13. Clause 117.211 requires that at the time of application the 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 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.

14. ‘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 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.  In the present case, the sponsor is the relevant Australian relative.

15. 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 117.211(a) is not met, and does not continue to be met at the time of decision.

    Age – reg 1.14(a)(i)

16. Regulation 1.14(a)(i) requires that the applicant has not turned 18. The Tribunal is satisfied on the evidence before it that the applicant was born on 7 May 2007.  Accordingly reg 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 – reg 1.14(a)(ii)

17. Regulation 1.14(a)(ii) requires that the applicant does not have a spouse or de facto partner.

18. The Tribunal is satisfied on the evidence before it that the applicant did not have a spouse or de facto partner either at time of application or at time of decision.

19. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

21. A ‘close relative’ ꟷ which is defined by reg 1.03 to mean partner, child, parent, brother, sister, or a step-child, step-brother or step-sister; or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

22. The Tribunal accepts the sponsor is the biological brother of the applicant’s mother.  He is therefore a maternal uncle of the applicant and is a close relative as defined in reg 1.03. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

23. 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.

24. It is submitted by the applicant that his father is deceased. The Tribunal accepts, on the evidence provided to it, namely the death certificate, that the applicant’s father died on 21 February 2012.

25. The critical issue for the Tribunal is whether the applicant’s mother is permanently incapacitated and as a result of that incapacity is not able to care for the applicant. The requirement is that the parents cannot, as distinct from will not, care for the child, and only because of the prescribed reasons. 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. In Acosta v MIBP [2016] FCCA 1276 (JudgeStreet, 26 May 2016) at [10] 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 care of a child or neglectful, but that it is not the same as being ‘permanently incapacitated’.

26. The Tribunal has carefully considered the evidence:

    ·      In a letter (with English translation) dated 15 September 2023, Dr Widayan Dewi Wulandari, psychiatrist, stated that the applicant’s mother was a patient at the psychiatric ward on 15 September 2023 and having been diagnosed with depression  her therapy includes :

    oSertraline 2 x 25 mg

    oOlanzapine 1 x 5 mg

    oClobazam 5 mg 0 10 mg.

27. The sponsor told the Tribunal that his sister (the applicant’s mother) had sustained emotional trauma from two failed marriages. Consequently she was unfit to care for the applicant. When asked by the Tribunal to explain more of his sister’s mental state and her raising of the applicant, the sponsor described her as being regularly withdrawn and forgetful. She was said to have mood swings and as a result was living with the applicant in an apartment on the family property, rather than in the main house as her mood swings sometimes caused conflict with her other adult siblings who also live there with their mother.

28. Since the sponsor is the only one of his siblings to succeed in his career and emigrate to Australia, he feels it incumbent upon himself to financially assist his family in Indonesia, including to seek to sponsor the applicant to live with him in Australia and pursue a better life.

29. The Tribunal carefully considered the medical evidence as to the incapacity of the applicant’s mother. The Tribunal accepts the diagnosis of his treating doctor that she receives treatment for depression, including the medication set out in the medical letter.

30. Whilst it is unfortunate that Indonesian law appears to prevent a more fulsome medical assessment of the applicant’s mother to be before the Tribunal, it can only make findings on the evidence before it.  On the evidence of the brief medical  report pertaining to the applicant’s mother (referred to above), the Tribunal is not in a position to make an informed decision upon the mental state of the applicant’s mother and whether her mental condition is such that she may be said to be permanently incapacitated for the purposes of the visa criteria.

31. The requirement is that a parent cannot, as distinct from will not, care for the child, and only because of the prescribed reasons. Accordingly, an applicant cannot be considered an orphan merely because his parent has abrogated their responsibility to provide care.

32. Accordingly, reg 1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

33. For these reasons, the criteria for the grant of a Subclass 117 visa are not met.  There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

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

    Stephen Conwell
    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.