GURBACHAN SINGH (Migration)

[2019] AATA 1518

GURBACHAN SINGH (Migration) [2019] AATA 1518 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  AMRITPAL KAUR GURBACHAN SINGH

VISA APPLICANT:  ALVINDERPAL SINGH GURBACHAN SINGH

CASE NUMBER:  1622238

DIBP REFERENCE(S):  OSF2014/032458

MEMBER:P. Wood

DATE:28 February 2019

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

· cl.117.211 of Schedule 2 to the Regulations; and

· cl.117.221(b) of Schedule 2 to the Regulations.

Statement made on 28 February 2019 at 11:53am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa –Subclass 117 (Orphan Relative) visa – applicant’s father is permanently incapacitated – evidence provided – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.14, Schedule 2, cls 117.211, 117.221

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 30 November 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 January 2014. At that time, 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.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211, and given that the applicant has now turned 18 years of age, cl. 117.221(b).

4. The delegate refused to grant the visa because the applicant did not meet cl.117.221 of Schedule 2 to the Regulations as the delegate was not satisfied that the applicant’s father is permanently incapacitated.

5. The applicant has since provided the Tribunal with a report dated 17 May 2017 from Professor Maniam of The Mind Faculty based in Kuala Lumpur, Malaysia.

6. The report from Professor Maniam concludes that the applicant’s father is incapacitated by dementia “resulting in him being unable to take care of himself or take responsibility for the care of others”.

7. It follows that the Tribunal is satisfied that the applicant’s father is permanently incapacitated by dementia.

8. The Tribunal is satisfied the visa applicant is an orphan relative of an Australian relative. She meets cl. 117.211. The Tribunal further finds that the visa applicant continues to satisfy the criterion in cl.117.211. It follows that cl.117.221 is met.

9. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

10. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221(b) of Schedule 2 to the Regulations.

    P. Wood
    Senior Member

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan 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.