Engineer (Migration) - [2018] AATA 2014

Engineer (Migration) [2018] AATA 2014 (6 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Benaifer Aspi Engineer
CASE NUMBER:  1608249
DIBP REFERENCE(S):  CLF2015/77721
MEMBER:Hugh Sanderson
DATE:6 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 06 June 2018 at 2:49pm
CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 837 (Orphan relative) – Parents whereabouts unknown – Parents abandoned the family – Maternal grandparents legal guardians – minimal efforts made to locate the applicant’s parents – Practice and procedure – Failed to attend the hearing – Decision made on review
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14 Schedule 2 cls 837.111, 837.213, 837.221
CASES
Elaraby v MIBP [2018] FCCA 1101
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 18 May 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 11 December 2015. 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. The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa because the applicant did not meet cl.837.213 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant met the definition of an orphan relative in r.1.14. Specifically, the delegate was not satisfied that the applicant could not be cared for by either parent because each of them was either dead, permanently incapacitated or of unknown whereabouts.
Background
The applicant is a citizen of India and is currently 20 years old. At the time of the current application she was 17 years and 11 months old. She has a brother, Jemmy, who is currently 30 years old. He currently resides in India. The father of the applicant and her brother is Aspi Phirosha Engineer and their mother is Hutoxi Engineer.
The applicant and her brother filed an application for the grant of Orphan Relative visas on 5 January 2006. In that application it was claimed that their mother died in floods in Mumbai on 12 August 2005 and their father died on 18 March 1999. Death certificates were provided of the applicant’s mother and father in support of the application. As a result of enquiries made by the Department these documents were shown to be bogus. After the applicant’s agent initially confirmed that the parents of the applicant had died and requested more time to provide information about this, the application was then withdrawn on 29 January 2007.
Orders were made in the High Court of Bombay on 25 March 2009 appointing the applicant’s maternal grandparents as her guardians. In respect of that application it was claimed that the applicant’s father left the matrimonial home on 16 July 1998 and had not been seen since then. It was claimed the applicant’s mother left the matrimonial home on 16 July 2005 and had not been in contact with the applicant since then. It was claimed that the applicant had always been living with her maternal grandparents.
The applicant’s maternal grandparents were granted Subclass 143 Contributory Parent visas in 2012. The applicant was granted a Subclass 571 Student visa. The applicant entered Australia on 23 April 2010 and has resided in Australia since then.
The applicant applied for a Subclass 837 Orphan Relative visa on 24 May 2010. In that application she was sponsored by her uncle and it was claimed that her mother had abandoned her in 2005 and her father had abandoned her in 1998. The Department refused that application. The delegate found that no efforts had been made to locate the applicant’s mother and there was insufficient evidence to support the claim that her whereabouts were unknown and there was no evidence that she was permanently incapacitated. Based on those findings, the delegate found that the applicant did not meet the definition of an orphan relative in r.1.14(b). An application to the Tribunal (differently constituted) for a review of that decision was unsuccessful and the Department’s decision was affirmed.
The current application was filed on 11 December 2015. The sponsor of the applicant is the maternal grandmother. Various documents were provided in support of the application. Pages from three Indian newspapers dated 19 February 2016 were provided showing advertisements asking for information about the whereabouts of the applicant’s parents.
Submissions were made by the applicant’s agent where the following was claimed:
·The applicant had been abandoned by both her parents and had been in the sole care of her grandparents since about 2005 or 2006;
·The applicant’s grandparents are permanent residents in Australia residing with the applicant, their son and his wife and child;
·The applicant cannot be cared for by her parents because both of them are of unknown whereabouts;
·The applicant’s maternal grandparents have been granted guardianship in India because both her parents are of unknown whereabouts;
·Section 108 of The Indian Evidence Act, 1872 provides that if a person has not been heard of for seven years then the burden of proving that person is alive shifts to the person who affirms it; and
·It is in the best interests of the applicant that she is able to remain with her paternal grandparents in Australia.
The delegate who considered the application noted the following issues:
·The criteria in the definition of an orphan relative in r.1.14 is that the person “cannot be cared for” by either of their parents, which should not be confused with the parents are “unwilling to care for” the person;
·There is no evidence that the parents of the applicant are deceased or that they are incapacitated for any reason;
·The previous application for an Orphan Relative visa was based on the grounds that the applicant’s parents were unknown and that application was refused by the Department and that decision was affirmed on review by the Tribunal;
·Apart from claiming that they had no contact with either parent, the only evidence of any enquiries as to the parents whereabouts were copies of advertisements placed in newspapers in Mumbai on 19 February 2016, which was done after the Department had requested evidence of steps taken to locate the applicant’s parents;
·There appears to have been minimal efforts made to locate the applicant’s parents at any time; and
·There was no evidence of any declaration made by any Indian court that the applicant’s parents have been declared “dead in absentia” as referred to by the applicant’s agent.
Taking these matters into account, the delegate was not satisfied that the applicant met the definition of an orphan relative in r.1.14 and therefore found the applicant did not meet the criteria in cl.837.213 and refused the application.
The applicant was invited to attend a hearing before the Tribunal to be conducted on 5 June 2018. The hearing invitation was sent on 23 April 2018 to the email address that was provided by the applicant in the review application. Reminder SMSs were sent to the applicant on the mobile phone number she provided in her review application on 29 May 2018 and 4 June 2018 confirming the hearing date. The applicant failed to attend the hearing before the Tribunal or provide any information as to why she was not able to attend the hearing.
The Tribunal has proceeded to a decision based on the information the applicant provided to the Department and to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the definition of an orphan relative.
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 grandmother, 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 is not 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.
The applicant’s claim is that she cannot be cared for by either of her parents as both are of unknown whereabouts. The claim is that her father abandoned her in 2000 when she was two years old and her mother abandoned her in 2005 when she was seven years old. She has been cared for primarily since then by her grandparents who were granted guardianship of her by the Mumbai High Court in 2009. She has had no contact with her parents since they abandoned her. The Tribunal accepts these claims.
The abandonment of the applicant by her parents indicates a refusal to care for her. There is no clear indication why her parents would have abandoned her, however it is clear that there was a breakdown in the relationship between both her parents and the applicant’s grandparents and other maternal relatives of the applicant for some reason.
The applicant and her grandparents claimed they were not sure if the applicant’s parents were alive or dead. They claimed their whereabouts were unknown. It was claimed neither parent had attempted to contact anyone in the family since they disappeared. They provided classified advertisements in three papers seeking information about the applicant’s parents. They claimed they had contacted the police, however there was no result from those enquires and they engaged a private investigator which did not produce any results.
The advertisements published in the papers all seem to have been published on or near 19 February 2016 in response to the Department’s request to provide information of attempts to locate the applicant’s parents. There does not seem to have been anything done prior to this time. As it appears that both parents abandoned the applicant and the other members of the family for whatever reason, it is not surprising that there was no response to these advertisements. There does not seem to have been any genuine ongoing attempt to locate the applicant’s parents.
Although it was claimed that enquires were made with the police, no report or any information was provided from the police to confirm such enquiry was made or what the results of that enquiry was. There seems to have been no report of a missing person or other enquiry about the applicant’s parents at any time. The Tribunal does not accept that any genuine attempts have been made by the applicant or members of her family to locate her parents by contacting the police or requesting that they assist in locating the applicant’s parents.
It was claimed that the applicant’s grandparents engaged a private investigator, however, his efforts did not produce any result. The applicant did not provide any report from any private investigator who may have been engaged to locate her parents or what, if any, investigations were made to try to locate them. Apart from the claim that a private investigator was hired, there is no evidence that the applicant’s family actually did do this. The Tribunal does not accept that any genuine attempts have been made by the applicant or members of her family to locate her parents by engaging a private investigator to assist in locating the applicant’s parents.
The applicant’s former agent made reference to the claim that as the applicant’s parents had not been heard from for so long, there should be a presumption of death for both parents.
Although the applicant’s grandparents were granted guardianship of the applicant by a court in Mumbai, there is no evidence that any court in India has declared either parent as having died. The correct manner in which to approach the interpretation of the common law presumption of death in immigration matters was considered in Elaraby v MIBP [2018] FCCA 1101.
In that matter it was noted that it would be jurisdictional error if the Tribunal considered the father (who it was claimed was dead) was alive or dead by solely considering the matter on the evidence presented of lack of any contact with that person giving rise to the presumption of death.
As stated above, there appears to have been a falling out between both parents of the applicant and the other members of her maternal family, including the applicant’s grandparents. It is not surprising, therefore, that the applicant’s parents have not sought to make contact with them or that they have heard nothing from them. The fact that the applicant’s parents have not communicated with other members of the maternal family after that falling out does not mean that they are missing, just that they do not want to communicate with them. There does not appear to have been anything done by the applicant or her extended family at the time it was claimed that the parents did abandon the applicant to try to locate them or communicate with them. There appears to have been little done since that time. The Tribunal does not accept that as the applicant’s parents have not been heard of by other members of her family that her parents can be presumed dead.
The Tribunal has considered all the evidence before it provided by the applicant. No information has been provided that the applicant’s parents are incapacitated for any reason. No information has been provided that the applicant’s parents are dead and the Tribunal is not satisfied that the applicant’s parents can be presumed dead. The Tribunal is not satisfied that there have been any genuine attempts to locate the applicant’s parents or that their whereabouts is unknown
Accordingly, r.1.14(b) was not met at the time of application and is not met at the time of decision.
Given the findings above, cl.837.213 is not met.
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Hugh Sanderson
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.