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

1. 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).

2. 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.

3. 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.

4. 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 December 2018 for special leave to appeal to the High Court of Australia. That application was also dismissed.

5. The applicant’s mother travelled to China in January 2020. At the time of decision, she was still there, living with her parents, prevented (according to the applicant) from returning to Australia by COVID-19 travel restrictions. The applicant has not departed Australia since   2017. He has held a Bridging C visa since 19 May 2019, and has held work rights since 21 August 2019. At the time of decision, he advised that he was living with his uncle and was unemployed, having lost his job in hospitality (as a waiter) because of COVID-19 shut-downs. 

6. The applicant applied for this visa on 15 May 2019. 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.

7. 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 which requires the applicant to be an orphan relative of an Australian relative of the applicant.

8. The delegate refused to grant the visa because the applicant did not meet cl 837.213 of Schedule 2 to the Regulations. The delegate found the applicant did not meet the definition of orphan relative in r 1.14 (summarised below and attached to this decision). The delegate’s decision recorded that the applicant was 24 years of age on the date the application was lodged. He had turned 18. Therefore, he did not meet r 1.14(a)(i). Further, the applicant provided no claim or evidence that he cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Therefore, he did not meet r 1.14(b).

9. On 29 January 2021 the Tribunal invited the applicant to a hearing, to be held by MS Teams video, scheduled for 17 February 2021. On 11 February 2021 the Tribunal received a written submission (dated 10 February 2021) from the representative. The representative informed the Tribunal that they had been instructed by the applicant that the applicant would not participate in the hearing. The representative confirmed that he had advised the applicant, and that the applicant was ‘fully aware’, that he did not meet the requirements for the grant of the visa. The applicant’s case, as submitted by the representative, is that the applicant was left with ‘no choice’ but to lodge a valid visa application (in this case for an Orphan Relative visa) for the purpose of being able to make a request for Ministerial intervention under s 341 of the Act, ‘in due course’. The representative requested the Tribunal to postpone decision-making on the application until the related case (the applicant’s mother’s) was finalised.

10. On 12 February 2021 the Tribunal emailed the representative asking for clarification as to whether the applicant was consenting to a decision on the papers, or requesting a hearing postponement. On 15 February 2021 the representative emailed the Tribunal clarifying that the applicant was requesting a postponement until after the finalisation of his mother’s case.

11. The Tribunal agreed to postpone the hearing. Hearings scheduled for 13 April 2021 and 18 May 2021 were cancelled by the Tribunal, as a decision on the applicant’s mother’s case was pending but not yet finalised.

12. On 14 May 2021 the Tribunal invited the applicant to a hearing scheduled for 21 May 2021. On 20 May 2021 the (differently constituted) Tribunal made the decision to remit the applicant’s mother’s case, with the direction that she met cl 801.221(6) of Schedule 2 to the Regulations. The (differently constituted) Tribunal found it had no jurisdiction in relation to the applicant.

13. On 20 May 2021 the Tribunal received a request for a further hearing postponement. The representative submitted that, in the circumstances that the Tribunal was unable to agree to a further postponement of the hearing, the applicant consented to the finalisation of the application based on the papers. However, the representative requested, ‘should that be the circumstances’, that the Tribunal postpone any decision-making until at least seven days after the related case was finalised, to allow for further written submissions.

14. The Tribunal refused the applicant’s request to postpone the hearing, and refused also to delay its decision-making. While the applicant was unaware at least until late on 20 May 2021 that a decision had been made on his mother’s case, and unaware (according to the representative) until shortly before the hearing that his mother’s matter had been remitted to the Department, the Tribunal considered that he had had ample time to make written submissions.

15. The applicant appeared before the Tribunal on 21 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

16. The applicant was represented in relation to the review by his registered migration agents. The representative who prepared the written submissions and corresponded with the Tribunal was unable to attend the hearing, and the applicant was represented by another agent from the same agency.

17. A further written submission was received on 21 May 2021, after the hearing, from the representative who attended the hearing.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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?

20. 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.

21. ‘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.

22. 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)

23. 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)

24. 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.

25. 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?

26. 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.

27. No claim was made or information before the Tribunal that the applicant was adopted by the Australian relative.  Accordingly, cl 837.213(b) is not met, and continues not to be met at the time of decision.

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

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

30. 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).

    Ministerial intervention

31. In his written submission dated 10 February 2021 provided to the Tribunal, the representative stated:

    We confirm the review applicant is fully aware that he does not meet the relevant requirements for grant of a Subclass 837 Child (Residence) (Class BT) Orphan Relative visa.

32. As noted, the applicant advised in written submissions, and confirmed at hearing, through his representatives, that this application was lodged in order to enable him to seek Ministerial intervention. The representatives submitted that in view of the applicant’s mother’s success in her partner visa case, the applicant’s circumstance ‘no doubt amounts to unique and exceptional circumstances’. The unfair and unfortunate circumstance of the application was he was not included in the partner visa review application because of an oversight of a previous agent. If he had been included, his application for a partner visa would have been remitted to the Department for reconsideration, along with his mother’s.

33. The Tribunal put to the applicant at hearing that he was 26 years old at the time the decision was made to grant his mother a Partner (Subclass 801) visa, on 20 May 2021, and that he might be found not to meet the criteria for a Partner visa if he was found not to be a dependent child of the primary applicant. Therefore, the applicant might have been found not to meet the criteria for a Subclass 801 visa, even if his review application had been lodged in time: that is, regardless of his ‘unique and exceptional circumstances’ of having been left off the original review application.

34. The applicant stated that he has lived in Australia since 2013; that he was looking forward to living with his mother again in this country; and that if he was granted a permanent visa, it would be easier for him to obtain secure employment.

35. The representative who attended the hearing provided a post-hearing submission in which she submitted that the applicant was the holder of a Subclass 445 visa which ceased on notification of a decision to refuse a Subclass 801 visa to the person of whom the applicant is a dependent child (his mother). Therefore, the applicant would have been found to meet cl 801.321(1)(a) if his application had been remitted along with his mother’s, and his continuing dependency on his mother was not an issue.

36. Regardless of whether the applicant was poorly served by a former migration agent, and regardless of whether he would have been found to meet the criteria for a Partner (Subclass 801) visa if his review application had been lodged in time, the Tribunal does not consider his circumstances strongly compassionate or exceptional such as to warrant Ministerial intervention.

37. The Tribunal has decided not to refer the applicant’s case for the Minister’s consideration.

38. 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

39. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    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.