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…

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.

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Details

Case: [2018] AATA 2014
Decision Date: 6 June 2018

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 Subclass 837 (Orphan relative). The applicant sought to establish that they were an orphan relative of an Australian relative, as defined by the Migration Regulations 1994. The applicant's maternal grandparents were the relevant Australian relatives, and the applicant claimed they could not be cared for by either parent due to their unknown whereabouts, having been abandoned by both parents.

The primary legal issue before the Tribunal was whether the applicant met the definition of an "orphan relative" under Regulation 1.14 of the Migration Regulations 1994 at the time of the visa application and at the time of the decision. This required determining if the applicant was under 18, a relative of an Australian citizen, and crucially, if both parents were either dead, permanently incapacitated, or of unknown whereabouts, and if there was no compelling reason to believe granting the visa would not be in the applicant's best interests.

The Tribunal accepted the applicant's claims that both parents had abandoned them and were of unknown whereabouts, and that the applicant had been cared for by their grandparents since the abandonment. However, the Tribunal interpreted "unknown whereabouts" in Regulation 1.14(b) in light of the case law, which distinguishes between a parent's refusal or unwillingness to care and a genuine unknown whereabouts. The Tribunal found that the abandonment by the parents, while accepted, indicated a refusal to care rather than a situation where their whereabouts were truly unknown in the sense contemplated by the regulation. Consequently, the Tribunal concluded that the applicant did not meet the criteria for being an orphan relative.

The Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, finding that the criteria for the Subclass 837 visa were not met. No claims were advanced in respect of other visa subclasses within Class BT.

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 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.

Decision

Reasons for decision

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 SandersonMemberATTACHMENT – 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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