Hay (Migration)

[2017] AATA 151

Hay (Migration) [2017] AATA 151 (31 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Edna Garcia Hay

VISA APPLICANT:  Miss Monique Ann Garcia

CASE NUMBER:  1607138

DIBP REFERENCE(S):  OSF2015/032746

MEMBER:Kira Raif

DATE:31 January 2017

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 31 January 2017 at 7:24am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Visa applicant over eighteen years – Previous applications made before eighteen years – No adoption – Dependence upon the review applicant – Compassionate grounds

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 117.211, r 1.14

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 4 April 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 is a national of the Philippines. She applied for the visa on 28 August 2015. The delegate refused to grant the visa because the applicant did not meet cl.117.211 because the visa applicant was over the age of 18 at the time the application was made. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. On 15 December 2016 the Tribunal wrote to the review applicant inviting her to attend the hearing on 23 January 2016. The applicant’s representative replied by requesting the Tribunal to postpone the hearing to late February 2017 to allow the applicant more time to prepare and gather evidence. The Tribunal has considered the request but decided not to postpone the hearing. The Tribunal notes that the matter has been before the Tribunal since May 2016. The primary decision was made in April 2016, the applicant was put on notice of the issues that arise in this case and these are not complex. No explanation has been offered by the representative as to why the applicant was unable to gather evidence and prepare her case between May 2016 and January 2017. No explanation has been offered as to what evidence was being gathered and why more time was required to gather such evidence. The Tribunal is mindful that the applicant had been given a prescribed period of notice to attend the hearing, so that the legislation considers that period to be adequate for the review applicant to prepare their case. Having considered the applicant’s circumstances, the Tribunal decided not to postpone the hearing.

4. The review applicant appeared before the Tribunal on 23 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, her grandmother and the spouse of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The review applicant was represented in relation to the review by her registered migration agent, Mr Andrew Lee. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (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. ‘Orphan relative’ is defined in r.1.14 of the Regulations.

   Is the applicant an orphan relative of the Australian relative?

7. The review applicant claims to an aunt of the visa applicant. She claims that her brother, the visa applicant’s father, has passed away and that the whereabouts of the child’s mother are unknown. The review applicant told the Tribunal that the visa applicant was brought up by various relatives and the visa applicant considers her as a mother. The review applicant provided to the Tribunal a number of documents relating to the visa applicant, including birth and death records and the visa applicant’s study records. The Tribunal acknowledges that evidence.

8. The review applicant confirmed in oral evidence to the Tribunal that the visa applicant was born in November 1996 and that the visa application was made in August 2015. The review applicant confirmed that the visa applicant was over the age of 18 at the time the application was made. The review applicant said she first prepared the visa application in 2006 but the papers were returned to her as the application was incomplete. She also made another application when the child was 16 years old. Following the hearing, the review applicant provided to the Tribunal evidence relating to the earlier visa applications made by the visa applicant. The Tribunal acknowledges that the visa applicant made previous visa applications but these are not cases that the Tribunal is able to review. There is only one application for review before the Tribunal and that is in relation to the decision to refuse to grant the visa for the application that was made in August 2015.

9. The Tribunal finds that at the time the application was made in 2015, the applicant was over the age of 18. The Tribunal is not satisfied the visa applicant meets r. 1.14(a)(i) and she is not an ‘orphan relative’ of the sponsor. The Tribunal Is not satisfied the visa applicant meets cl. 117.211.

10. The review applicant told the Tribunal she has not adopted the visa applicant, either through customary adoption or legal adoption. She said she travelled to the Philippines often but could not stay in the Philippines due to work commitments. The Tribunal is not satisfied the visa applicant is the child of the sponsor. She does not meet cl. 101.211. The Tribunal is not satisfied that the visa applicant has been adopted by the sponsor. She does not meet cl. 102.211.

11. The review applicant’s representative argues that there is a history of applications made by the visa applicant which shows their intention. The Tribunal accepts that there had been previous attempts to make the application but as noted above, the Tribunal is not able to consider the previous applications made. An intention to migrate to Australia is hardly a sufficient basis for visa grant. The representative submitted that the child is a dependent child and requested the Tribunal to grant more time to provide evidence of dependence, stating that this issue has been relevant in other cases. Following the hearing, the review applicant provided evidence of several money transfers made to the visa applicant and the Tribunal accepts that evidence. The Tribunal notes that dependency is not a requirement for the orphan relative visa and for the representative to rely on what may be a requirement in a different category of cases is unhelpful. The representative also submits that there are compassionate grounds for the grant of the visa. The Tribunal has no basis for granting the visa on compassionate grounds.

12. The review applicant’s partner informed the Tribunal that the visa applicant had previously travelled to Australia and had complied with visa conditions and left on time. The Tribunal accepts that evidence but it does not establish any grounds for the grant of the visa. Having found that the visa applicant does not meet the key criteria for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

    Conclusion

13. 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

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

    Kira Raif
    Senior Member