El Roumi (Migration)

[2023] AATA 4411

El Roumi (Migration) [2023] AATA 4411 (20 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mahmoud El Roumi

VISA APPLICANT:  Mr Ali Roumi

CASE NUMBER:  2209551

HOME AFFAIRS REFERENCE(S):          BCC2022/1419067

MEMBER:Kira Raif

DATE:20 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2023 at 8:44am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – over 18 when application made – no provision to waive requirement on basis of incapacity – need for help with activities of daily living and financial dependency – informal assignment of guardianship by mother – request for referral for ministerial consideration not accepted – applicant can apply directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(a)(i), Schedule 2, cls 117.111, 117.211

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 24 June 2022 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 is a national of Lebanon, born in May 1990. He applied for the visa on 21 April 2022. The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was an orphan relative of the Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 19 December 2023 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. Clause 117.211 requires that at the time of application the visa 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 visa 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.

7. ‘Orphan relative’ is defined in reg 1.14 of the Regulations. An ‘Australian relative’ is a relative of the visa 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. 

   Is the visa applicant an orphan relative of an Australian relative?

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was born in May 1990. The application for the visa was made in April 2022 and the delegate found that the visa applicant was over the age of 18 at the time the application was made. The delegate concluded that the visa applicant did not meet the requirements of r. 1.14(a)(i) and of cl. 117.211. 

9. In his submission to the Tribunal the review applicant outlined his brother’s circumstances, and the high cost of living, stating that he cannot afford to provide care to his brother and that his brother’s health is affected. In oral evidence the review applicant also spoke about his family’s circumstances.

10. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. As the visa applicant was born in May 1990 and the application for the visa was made in 2021, the Tribunal finds that the visa applicant was over the age of 18 when the application was made.

11. The review applicant provided to the Tribunal evidence of money transfers and the Tribunal accepts that the review applicant had sent money to the visa applicant. The review applicant also provided the visa applicant’s ‘handicapped card’ and a hospital records which states that Ali Hassan Al Roumi ‘complains of mental retardation’. It is stated that his chronological age cannot reflect his mental age, he cannot make formal decision and depends on his brother financially as he lacks opportunity to work. A further statement from Dr Fawaz also refers to the visa applicant having a ‘partial disability’ caused by a medical error during childbirth and hypoxia resulting in life long disability. It is stated that Ali cannot fend for himself and needs help with ADLs.

12. The Tribunal is prepared to accept that the visa applicant is financially dependent on the sponsor. It is not necessary for the Tribunal to determine if the visa applicant is incapacitated for work due to the total or partial loss of bodily or mental function. This is because, unlike the definition of ‘dependent child’, the definition of ‘orphan relative’ does not have a provision to waive the age requirement for those applicants who were over the prescribed age when the assessment against the visa criteria needs to be made on the basis of incapacity. The wording of r. 1.14(a)(i) is clear and unambiguous and requires the applicant to be under the age of 18. There is no possibility to waive that requirement in any circumstance. The Tribunal finds that the visa applicant was over the age of 18 when the application was made.

13. The review applicant told the Tribunal that even though his brother’s age was over 18, due to his disability his brother is like a child. However, as noted above, the Tribunal is of the view that the legislation refers to the biological age alone and not any other criterion in relation to one’s age or capability.

14. As the visa applicant was over the age of 18 when the application was made, the visa applicant does not meet reg 1.14(a)(i) and the definition of ‘orphan relative’.  The Tribunal is not satisfied that the visa applicant is an orphan relative of the sponsor, within the meaning of r. 1.14 and he does not meet cl. 117.211.

15. The visa applicant is a sibling of the sponsor. There is nothing to suggest he is a child or an adopted child of the Australian relative. The review applicant also provided a statement from the visa applicant’s mother Fatima Roumi stating that she appoints and permits Mahmoud Roumi to be a guardian for his brother Ali Roumi and allowing Ali Roumi to reside overseas. While the Tribunal acknowledges that evidence, the Tribunal is mindful that the appointment of a guardian occurs through a formal process or by a court and it cannot be done by a statement of a parent. The Tribunal finds that document does not constitute the formal appointment of a guardian and, importantly, it does not evidence the visa applicant being adopted by the sponsor. The review applicant told the Tribunal that his brother is like a child, but that  does not establish a parent – child relationship between the visa applicant and the sponsor. The Tribunal is not satisfied the visa applicant meets the requirements for the grant of the Child or Adoption visas.

16. The Tribunal also notes that a different application fees applies in relation to the Orphan Relative visa as prescribed at Item 1108 of Schedule 1. The review applicant confirmed in oral evidence to the Tribunal that the visa application fee was about $1660. As the visa applicant had paid the smaller application fee as prescribed in relation to the Orphan Relative visa application, he would not have made a valid visa application in relation to the other subclasses of Class AH visa.

17. In oral evidence, the review applicant spoke about his family losing the opportunity to retain the US visas due to the fault of an agent. The review applicant spoke about the being defrauded of his life savings and about his contribution to the community and the hardship he and his family have experienced. The Tribunal accepts the review applicant’s evidence but has no power to recommend the grant of the visa on compassionate grounds.

18. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

19. 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

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

    Kira Raif
    Senior Member