Chiu (Migration) - [2021] AATA 3340

Chiu (Migration) [2021] AATA 3340 (25 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yat Fu Chiu
CASE NUMBER:  2007829
DIBP REFERENCE(S):  CLF2019/23329
MEMBER:Adrienne Millbank
DATE:25 May 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 25 May 2021 at 12:18pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan relative) – ‘orphan relative’ of an Australian relative – age requirement – 24 years old at the time of application – no parental care requirement – mother living in China – applicant’s mother’s success in her partner visa case – request for Ministerial Intervention declined – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cl 837.213
CASES
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 14 April 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (the Act).
The applicant is a citizen of the People’s Republic of China and of the Hong Kong Special Administrative Region. He was born on 4 August 1994 and 26 years old at the time of decision. He first arrived in Australia on 12 January 2011 on an ETA Visitor (Subclass 976) visa. He was granted a further Tourist (Subclass 676) visa on 13 April 2013. On 17 September 2013 he was granted an Extended Eligibility (Temporary) (Dependant Child) (Subclass 445) visa. That visa had a cease date of 12 December 2013.
The applicant’s mother applied for a Partner visa in 2010. She was granted a Partner (Provisional) (Subclass 820) visa on 23 February 2011. The applicant was included in her Partner visa application, as a dependant, in 2013. The application for a Partner (Resident) (Subclass 801) visa was refused on 3 December 2013. The applicant’s mother lodged an application for review of that decision, through her then representative, on 11 December 2013. The applicant was not included in that application. Another review application was lodged on 6 January 2014, which included the applicant. On 22 August 2014 the then Migration Review Tribunal affirmed the decision to refuse the applicant’s mother a Partner (Resident) (Subclass 801) visa. It found it did not have jurisdiction in the case of the applicant, for the reason that the date of 6 January 2014 was outside the prescribed period for lodging the application for review.
The applicant’s mother’s matter was remitted to the Tribunal by the Federal Circuit Court on 29 March 2018. The applicant’s appeal to the Federal Circuit Court was dismissed. The applicant lodged an appeal to the Federal Court of Australia on 17 April 2018, which was also dismissed. The applicant lodged an application on 14…

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 Chiu (Migration)

Details

AGLC: Chiu (Migration) [2021] AATA 3340
Case: [2021] AATA 3340
Decision Date: 25 May 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Child (Residence) (Class BT) visa, specifically a Subclass 837 (Orphan relative) visa. The applicant sought to establish that he was an orphan relative of an Australian citizen, his uncle. The Tribunal was required to determine whether the applicant met the criteria for an orphan relative and whether the case warranted referral for Ministerial intervention.

The primary legal issues before the Tribunal were whether the applicant qualified as an "orphan relative" of an Australian relative at the time of his visa application and at the time of the decision, and whether the Tribunal should refer the case for Ministerial intervention. To be considered an orphan relative under the Migration Regulations 1994, an applicant must generally be under 18 years of age, not have a spouse or de facto partner, be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and be unable to be cared for by either parent because they are dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal found that the applicant did not meet the definition of an orphan relative. Specifically, the applicant was 24 years old at the time of application and 26 at the time of the decision, failing the age requirement of not having turned 18. Furthermore, the Tribunal determined that the applicant's mother was alive and residing in China, and there was no evidence that she was dead, permanently incapacitated, or of unknown whereabouts. The applicant's assertion that his mother intended to return to Australia indicated she was capable of care. Consequently, the Tribunal affirmed the decision not to grant the visa. The applicant was advised that he could lodge an application for Ministerial intervention directly with the Department.

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case are whether the applicant is an orphan relative of an Australian relative of the applicant; and whether the Tribunal should refer the case to the Department for consideration for Ministerial intervention. 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 uncle, an Australian citizen, 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 was born on 4 August 1994. He was 24 years old at the time of application and is, as noted, 26 years old at the time of decision. Accordingly, r 1.14(a)(i) was not met at the time of application and continues not 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. In his application form, the applicant declared that his mother was living in Australia, and that his father’s country of current residence was unknown. The applicant has not left Australia since 24 April 2017. As noted, at the time of decision, the applicant’s mother was in China: her hearing before the (differently constituted) Tribunal was conducted over the phone. No claim has been made by the applicant that his mother is dead or permanently incapacitated or of unknown whereabouts: indeed, at hearing the applicant stated that his mother intends to return to Australia as soon as possible. Accordingly, the Tribunal finds that the applicant’s mother is not dead or permanently incapacitated or of unknown whereabouts. Therefore, r 1.14(b) was not met at the time of application and continues not to be met at the time of decision.Has the applicant been adopted by the Australian relative?

Decision

Reasons for decision

The applicant acknowledged at hearing that he understood that he was able to lodge an application with the Department for Ministerial intervention, without a referral from the Tribunal. DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.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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