Kabura (Migration)

[2017] AATA 2338

Kabura (Migration) [2017] AATA 2338 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr JOSEPH KABURA

VISA APPLICANT:  Miss TANTINE BARANTIJE

CASE NUMBER:  1517066

DIBP REFERENCE(S):  F2015/046280

MEMBER:Kira Raif

DATE:13 November 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 13 November 2017 at 5:17pm

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – Aged over 18 at time of application – Not an orphan relative

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.14, Schedule 2, cl 117.211(a)-(b), cl 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 12 November 2015 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 Burundi, born in April 1997. The visa applicant applied for the visa on 16 September 2015. 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 found the visa applicant was not an orphan relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegates’ decision.

3. The review applicant appeared before the Tribunal on 13 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. The review applicant was represented in relation to the review by his registered migration agent. 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 (the Regulations). Relevantly to this case, they include cl.117.211. 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 visa applicant an orphan relative of an Australian relative?

6. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was born in April 1997 and turned 18 in April 2015.

7. In his submission to the Tribunal of 10 December 2015 the review applicant notes that he mailed the application to the Department in December 2014, it took four months for it to be received and he was later advised that the fees had increased and that additional payment was required. The review applicant subsequently paid by credit card. The review applicant provided various documents outlining the communication between the overseas post and his migration agent. In oral evidence to the Tribunal the review applicant also said that it took about four months for the application to be received and by that time around March 2015, the application fees had gone up. It took a further two months for the additional fees to be requested. The applicant noted that the delay was on the part of the Department and the postal services and he had no control over these matters.

8. The Tribunal acknowledges that evidence and is prepared to accept that there may have been some delay for the application to be received by the Department and on the part of the Department to advise the review applicant about the fees increase and to request additional fees. The applicant also refers to some issues with his credit card, which delayed the application even further. The Tribunal accepts that there appears to have been an unfortunate series of events that delayed the lodgement of the application. However, the Tribunal is mindful that a valid application is made when a full fee is paid. Whatever the reasons for the delayed receipt of the application, the applicant’s evidence is that the application reached the overseas post in March 2015 and by that time the application fees had increased. The applicant’s evidence appears to be that the full fee was not paid until around August or September 2015. The mere fact that the application was acknowledged in March 2015 is not sufficient to make a valid visa application because that application was not accompanied by the prescribed fee at the time of its receipt.

9. The Tribunal finds that the application was validly made in September 2015 when the prescribed fee was received by the overseas post. The visa applicant turned 18 in April 2015. The visa applicant was over the age of 18 at the time the application was made. She therefore does not meet the definition of ‘orphan relative’ in r. 1.14. The Tribunal finds that the visa applicant is not an orphan relative of an Australian relative. The visa applicant does not meet cl. 117.211 and cl. 117.221.

10. There is no suggestion that the visa applicant is a child of the review applicant, either biological or adopted. There is no evidence of his adoption by the review applicant. The Tribunal is not satisfied the visa applicant meets the requirements for the grant of the Subclass 101 or Subclass 102 visas.

    Conclusion

11. 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

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

    Kira Raif
    Senior Member