Davids (Migration)

[2019] AATA 280

Davids (Migration) [2019] AATA 280 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Terchia Davids

CASE NUMBER:  1619083

HOME AFFAIRS REFERENCE(S):           CLF2016/43000

MEMBER:Justine Clarke

DATE:16 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 January 2019 at 6:00pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) – Subclass 802 (Child) – applicant over 18 – adopted by paternal grandparents – former carer died – financially supported by adoptive parents – credible witnesses – ministerial intervention referral – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359

Migration Regulations 1994 (Cth), r 1.14 Schedule 2 cls 802.213, 837.214

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 and Border Protection on 27 October 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. On 19 July 2016, the applicant applied for the visa. At the time of this decision, the applicant is a 22 year old national of South Africa.

3. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). An applicant is entitled to be assessed against the criteria of all the subclasses in the class of visa applied for.

4. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.213(1). This provides:

   If the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in subclause 802.212(1) is an adoptive parent of the applicant, the applicant:

   (a)  was under 18 when the adoption took place; and

   (b)  meets the requirements of subclause (2), (3), (4) or (5).

5. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that cl.802.213(1)(a) was not met. The delegate was satisfied that, at the time of application on 19 July 2016, the sponsor, Mr Macarthur James Henrickse, was an Australian citizen. However, the delegate noted that the Adoption Order was made on 12 May 2015, when the applicant was 19 years of age. The delegate found that the applicant could not meet cl.802.213(1)(a) because she was not under 18 years of age when the adoption took place. In the circumstances, the delegate did not assess the applicant against cl.802.213(2), (3), (4) or (5). The primary decision did not consider whether the applicant met any applicable time of application criteria for the grant of a Subclass 837 visa.

6. On 14 November 2016, the applicant applied to the Tribunal for review of the primary decision.

7. On 19 November 2018, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting her to provide, in writing, information to support her claim that, at the time of application on 19 July 2016, she met the criterion in cl.802.213(1)(a) or, alternatively, information that may support a claim that she met any applicable time of application criteria for the grant of a Subclass 837 visa.

8. On 3 December 2018, within the required time period, the applicant’s representative filed written submissions.

9. On 16 January 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and Mrs Letitia Henrickse (the applicant’s paternal grandmother and adoptive mother).  

10. The applicant was represented in relation to the review by her registered migration agent and the representative attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The written submissions of 3 December 2018 and 9 January 2019 outline the reasons for the applicant’s adoption by her paternal grandparents (now parents), the chronology of relevant events and the allegation that incorrect legal advice had been provided by the legal representative acting in relation to the adoption order and early efforts for the applicant to become an Australian citizen by descent.

13. The submissions conceded that the applicant did not, and could not, meet cl.802.213(1)(a). The submissions also acknowledged that the applicant’s age, at the time of application for the visa on 19 July 2016, put her outside the definition of ‘orphan relative’ in r.1.14 and accordingly presents a difficulty in her meeting cl.837.214(a)(i) for the grant of a Subclass 837 visa. The submissions requested that the Tribunal refer the matter to the Minister so that he could consider intervening in this matter pursuant to s.351 of the Act.

14. At the hearing, the applicant told the Tribunal her date of birth and the date the adoption order was made. She conceded that she was over 18 years at the time the adoption order was made and also at the time that she applied for the visa. She requested the Tribunal refer the matter to the Minister, telling the Tribunal that there was nothing in South Africa for her as her (adoptive) parents, with whom she lives, are in Australia and are currently supporting her financially and that they have done so since she was young. The Tribunal found the applicant to be credible.

15. Having considered the evidence before the Tribunal and the concession made by the applicant, the Tribunal finds that, at the time of application on 19 July 2016, the applicant did not meet cl.802.213(1)(a). Therefore, she cannot meet the criteria for the grant of a Subclass 802 visa.

16. The Tribunal considers that no clear claims have been advanced that the applicant meets Subclass 837, which is the other visa subclass in Class BT. Having considered the evidence before the Tribunal and the concession made by the applicant in the written submissions that the applicant could not meet the definition of ‘orphan relative’ in r.1.14, the Tribunal finds that, at the time of application on 19 July 2016, the applicant did not meet the definition of ‘orphan relative’ in r.1.14. Therefore, she cannot meet the criteria for the grant of a Subclass 837 visa.

17. As the applicant does not meet criteria for the grant of a Subclass 802 visa or a Subclass 837 visa, she does not satisfy the criteria for the grant of the Child (Residence) (Class BT) visa. Accordingly, the Tribunal must affirm the decision under review.

    Consideration of request for referral to the Minister for intervention

18. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

19. The written submissions of 9 January 2019 (Tribunal file ff.72–76) submit that this is a case that exhibits a number of unique or exceptional circumstances such that the Minister may consider exercising his discretion and also that there are a number of factors which weigh in favour of referring this matter to the Minister, including that there is no other valid visa pathway for the applicant to migrate to Australia given that she would not meet the genuine temporary requirement set out in cl.500.212 of Schedule 2 to the Regulations.

20. The applicant submitted a number of documents in support of the submissions (Tribunal file ff.39–71) and provided further documentary evidence at the hearing that the applicant’s former carer (her maternal grandmother) has died (Tribunal file f.104) and receipts for various payments made by the sponsor and his wife to provide financial support to the applicant over the years and other related documents (Tribunal file ff.78–103).

21. Mrs Henrickse gave oral evidence in support of the applicant’s request for the Tribunal to refer the matter to the Minister for his consideration. She told the Tribunal that the applicant had lived with her and sponsor when they were living in South Africa and when they migrated to Australia that they had left the applicant in the care of her other grandmother but that she had died. Mrs Henrickse told the Tribunal that she and her husband had supported the applicant financially when she had been living in South Africa. She gave oral evidence that the applicant had asked her and her husband to adopt the applicant to enable her to have a better life. She explained that, at present, the applicant has no one in South Africa who could support her, explaining that the applicant’s aunt is living in rented accommodation with four children of her own. She feared that the applicant would have no option but to live on the streets with no money. Mrs Henrickse was visibly upset when giving her evidence.

22. Prior to the conclusion of the hearing, the representative also outlined the submissions in favour of referring the matter to the Minister. For example, he stated that there were strong compassionate circumstances, including:

    ·that preparation for the adoption was commenced well before the applicant turned 18 years of age;

    ·the errors that were made by the applicant’s former legal representative (who had been referred to the parties by the Law Institute of Victoria);

    ·that the age of 18 is at the margin of adulthood and that, at the time of the hearing, the applicant fulfilled the definition of ‘dependent’; and

    ·Mrs Henrickse’s serious health condition and that the applicant plays a role in her treatment program.   

23. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

24. The Tribunal was impressed by the credibility of all persons who gave oral evidence at the hearing and accepts the validity of the oral evidence and submissions that were made. Examining the relevant factors individually and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

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

    Justine Clarke
    Member