Chisango (Migration)

[2017] AATA 347

Chisango (Migration) [2017] AATA 347 (27 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Dudzai Chisango

VISA APPLICANT:  Mr Raphael Mungate

CASE NUMBER:  1606872

DIBP REFERENCE(S):  OSF2015/046330

MEMBER:Michelle Grau

DATE:27 February 2017

PLACE OF DECISION:  Brisbane

DECISION:The tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 27 February 2017 at 4:42pm

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Step child – Customary marriage with visa applicant’s late father – Financial and emotional support – No parenting, guardianship or custody orders – Definition of dependent child – Adoption requirements – Not orphan relative

LEGISLATION

Migration Act 1958, ss 5CA , 65
Migration Regulations 1994, Schedule 2, cl 101.211, cl 101.211(1)(c), cl 101.221(1) or (2)(a),

r 1.03, r 1.04, r 1.14   

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 March 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 10 November 2015. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211.

3. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the applicant did not meet the definition of step child of the review applicant and therefore was not the dependent child of the review applicant.

4. The review applicant appeared before the tribunal on 22 February 2016 to give evidence and present arguments.

5. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. At time of application, the visa applicant was a 17 year old Zimbabwe male. His parents were passed away in 2000 and 2010. His uncle, Kudakwashe Mungate, became his legal guardian in 2014. A 2014 guardianship certificate from the Juvenile Court for Mashonaland West province was provided in that regard.

7. The review applicant, Ms Dudzai Chisango, is an Australian permanent resident, granted in 2010. Ms Chisango claims she is the visa applicant’s step-mother as she was in a customary marriage with the visa applicant’s biological father. The review applicant has cared for the visa applicant since he was a young a child.

8. However, after the review applicant arrived in Australia in 2010,she continued to financially and emotionally support the visa applicant, who remained in Zimbabwe. The visa applicant currently lives with his uncle and the review applicant’s sister in Zimbabwe.

9. At review further statements and documents were provided to evidence the review applicant had been in a customary marriage with the visa applicant’s deceased father. The tribunal has considered the evidence and discussed the issues at hearing with the review applicant.

   Issue

10. The issue in this case is whether the visa applicant is the dependent child (as defined) of the review applicant.

11. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

12. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

13. Dependent child is specifically defined in r.1.03 as follows:

    of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)      has not turned 18; or
    (b)      has turned 18 and:

    (i)       is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

14. It is acknowledged the visa applicant is not the review applicant’s biological child.

15. This particular case turns on definition of step-child, which is extracted below.

16. Step- child is defined as follows:

    100001/_level 200001/_level 200002/legend_current_mrpop00219.aspxin relation to a parent, means:

    (a)  a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or
    (b)  a person who is not the child of the parent but:
    (i)  who is the child of the parent's former spouse or former de facto partner; and
    (ii)  who has not turned 18; and
    (iii)  in relation to whom the parent has:
    (A)  a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
    (B)  guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

17. The tribunal has considered the definition of step-child set out above.

18. The difficulty with this case is that the there is no parenting order in force under the Family Law Act and there is no guardianship or custody in force in respect of the visa applicant and review applicant. The tribunal accepts there is a guardianship order in relation to the visa applicant and his uncle, but this is not sufficient. To meet the definition of step child the review applicant needed to have a parenting order in force under the Family Law Act 1975 or guardianship or custody in respect of the visa applicant under a Commonwealth, State or Territory law, or a law in force in a foreign country. The tribunal finds the visa applicant does not meet the definition of child or step-child.

19. Accordingly the visa applicant does not meet the definition of dependent child. Accordingly, cl.101.211(1)(a) is not met at the time of application. Therefore the visa applicant does not meet cl 101.211.

20. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met.

21. The tribunal has also considered the alternative subclasses of the Child (Migrant) (Class AH) visa. The tribunal considered and discussed the requirements for subclass 102 Adoption visa and subclass 117 Orphan Relative visa. However, it was acknowledged at hearing that the review applicant had not adopted the visa applicant so the visa applicant did not meet the adoption requirements of r.1.04 for an Adoption subclass102 visa.

22. The tribunal accepts the visa applicant is an orphan as his parents are deceased. However, the applicant does not meet the definition of orphan relative in r.1.14 because he is not a relative (as defined by r.1.03) of the sponsor. The visa applicant does not meet the relative definition for the same reasons as outlined above because there is no parenting order or guardianship/custody in respect of him and the review applicant. As a result the visa applicant does not meet the requirements for an orphan relative subclass 117 visa.

    DECISION

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

    Michelle Grau
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    Child visa

    …101.211

    (1)  The applicant:

    (​a)  is a dependent child of:

    (i)  an Australian citizen; or
    (ii)  the holder of a permanent visa; or
    (iii)  an eligible New Zealand citizen;…

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    step-childin relation to a parent, means:

    (a)  a person who is not the child of the parent but who is the child of the parent's current spouse or de facto partner; or
    (b)  a person who is not the child of the parent but:

    (i)  who is the child of the parent's former spouse or former de facto partner; and
    (ii)  who has not turned 18; and
    (iii)  in relation to whom the parent has:

    (A)  a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
    (B)  guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    Section 5CA Child of a person

    (1)  Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a)  someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
    (b)  someone who is an adopted child of the person within the meaning of this Act.

    (2)  The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.

    (3)  Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.

    Reg 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.

    relative, in relation to a person, means:

    …

    (i)  a close relative; or
    (ii)  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

    close relative, in relation to a person, means: 

    (a)  the spouse or de facto partner of the person; or
    (b)  a child, parent, brother or sister of the person; or
    (c)  a step-child, step-brother or step-sister of the person.

    Reg 1.04  Adoption  

    (1)  A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under: 

    (a)      formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or 
    (b)  formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or 
    (c)  other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2)  For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if: 

    (a)  the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and 
    (b)  the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and 
    (c)  the Minister is satisfied that: 

    (i)  formal adoption of the kind referred to in paragraph (1)(b):

    (A)  was not available under the law of the place where the arrangements were made; or 
    (B)  was not reasonably practicable in the circumstances; and 

    (ii)  the arrangements have not been contrived to circumvent Australian migration requirements.