Mlilo (Migration)

[2019] AATA 6869

Mlilo (Migration) [2019] AATA 6869 (19 December 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Njabulo Mlilo

VISA APPLICANT:  Ms Sinenkosi Mlilo

CASE NUMBER:  1831104

DIBP REFERENCE(S):  CLF2018/358133 F2018/030689

MEMBER:  Christine Kannis

DATE:  19 December 2019

PLACE OF DECISION:  Perth

DECISION:  The Tribunal affirms the decision not to grant the

visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 19 December 2019 at 8:55am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative – no parental care – father deceased – death certificate provided – mother diagnosed with medical condition – physically limited in daily activities – incapacity to care for visa applicant – nature of care required – close to 18 years of age – emotional and psychological support provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cl 117.211

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

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 21 August 2018 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 4 January 2018. 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa because the visa applicant did not meet cl.117.211 of Schedule 2 to the Regulations as the delegate was not satisfied that both of her parents were deceased, permanently incapacitated or of unknown whereabouts at the time of application. The delegate also determined the visa applicant did not meet the required criteria in other subclasses within the visa class.

4. The review applicant appeared before the Tribunal on 25 November 2019 to give evidence and present arguments. The Tribunal attempted to contact the visa applicant by phone in Zimbabwe however was unable to do so.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant is the orphan relative of the review applicant because she cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

   Is the visa applicant an orphan relative of an Australian relative?

7. 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.

8. ‘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 visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. In the present case, Mr Njabulo Mlilo is the relevant Australian relative.

9. Regulation 1.14 says that an applicant is an orphan relative if he or she:

   -is a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   -     has not turned 18;

   - does not have a partner;

   -cannot be cared for by either parent¹ because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

   -there is no compelling reason to believe that the visa grant would not be in the applicant’s best interests.

10. The Tribunal notes that in meeting the criteria all aspects of the definition must be considered and met. If the visa applicant does not meet one aspect of the definition then she cannot meet the criteria for r.1.14.

11. For the reasons below, the Tribunal decided visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met and does not continue to be met at the time of decision.

    Age – r.1.14(a)(i)

12. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. At the time of application the visa applicant declared her date of birth was 13 January 2000. A Certified Copy of an Entry of Birth was provided. The document records the visa applicant’s date of birth as 13 January 2000.

13. The Tribunal has no evidence that the applicant’s date of birth is otherwise than as stated. Accordingly r.1.14(a)(i) was met at the time of application and is not met at the time of decision only because the visa applicant is now 19 years of age.

    Spouse or de facto partner – r.1.14(a)(ii)

14. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no suggestion that the applicant is in a spouse or de facto relationship in this matter. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

15. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

16. Relative is defined in r.1.03 and includes an uncle. The review applicant claims that the visa applicant is his younger brother’s daughter and therefore he is her uncle.

17. The Tribunal accepts that the review applicant is the brother of the visa applicant’s father and that she is a relative of the review applicant (within the meaning of r.1.03 as set out above) at the time of application and decision. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

18. Regulation 1.14(b) requires that the visa 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,

    1 ‘Parent’ is defined in s.5(1) of the Act. See also r.1.14A(1) of the Regulations (post 1 July 2009) which specifies that a reference to ‘parent’ includes ‘step-parent’ 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.

19. The visa applicant’s Certified Copy of an Entry of Birth records her father as Vulindela Mlilo and her mother as Thembekile Mlilo. A Death Certificate for Vulindhlela Mlilo was provided. The certificate shows the date of death as 30 November 2016 and the cause of death as chronic kidney disease. Based on the available evidence, the Tribunal accepts the visa applicant’s father is deceased.

20. The visa applicant’s mother has been diagnosed with HIV. Three medical reports were provided to verify the diagnosis. In a medical report dated 10 October 2017 Dr T Mubengegwi stated that the visa applicant’s mother is a patient under his care; is HIV positive and has recurrent bronchopneumonia; is in poor health and physically not in good health.

21. In a medical report provided dated 30 May 2018 Dr Mubengegwi stated that the visa applicant’s mother has a HIV diagnosis that has progressed to AIDS; is physically limited in daily activities and requires aids to walk and is unable to work. Dr Mubengegwi said he first saw her on 3 May 2010 and she was diagnosed with AIDS on 15 May 2010. He said she has been unable to work since 3 June 2015 due to the HIV related ailments which include recurrent bronchopneumonia, gastroenteritis and general body weakness. Dr Mubengegwi said her present symptoms include general body weakness, mental confusion and inability to walk and his view was that she was unable to resume any type of gainful employment due to physical impairment. He said she will decline in health and physical ability over time.

22. In a subsequent report dated 27 September 2018 Dr Mubengegwi provided information identical to the report dated 30 May 2018 and also said the visa applicant’s mother’s condition had deteriorated since the previous report and she is now bedridden and unable to move without assistance.

23. The review applicant told the Tribunal he has not observed the visa applicant’s mother since he visited Zimbabwe in early 2018 however he is regularly informed of her health status when he calls family members. He said her health goes up and down because of her susceptibility to illnesses. Sometimes she is able to get out of bed and sit outside with other family members and sometimes she stays in bed all day. The Tribunal noted Dr Mubengegwi’s statements in his two later reports that she is unable to walk and is bedridden. The review applicant said these statements described her health on bad days. He said she has good and bad days and although she recovers she never enjoys good health.

24. The review applicant said prior to her illness the visa applicant’s mother was a housewife and worked as a self-employed vendor. His brother was a teacher. He told the Tribunal that after his brother passed away in November 2016 the visa applicant’s mother and the three children (the visa applicant and two younger siblings) moved in to live with their paternal grandmother. He said they moved between the homes of the paternal and maternal grandmothers.

25. When asked about who was responsible for the cooking and the laundry of the households the review applicant said that children in Zimbabwe do their own laundry from age ten and cooking is shared by the female adults and children in the house. He said the household tasks are also shared.The Tribunal asked the review applicant who provides the visa applicant with emotional support in difficult times or with guidance if needed. He said the visa applicant’s mother is able to talk and is able to provide her with emotional support and guidance.

26. The review applicant said that after his brother passed away he and his sister (who lives in Melbourne) have financially supported the visa applicant and her two siblings. His mother (the paternal grandmother) receives a small pension and the visa applicant’s mother’s uncles financially support her. Evidence of monthly Western Union transfers from September 2015 to March 2018 from the review applicant to his mother (the paternal grandmother) was provided.

27. The Tribunal noted at the time of application the visa applicant was nine days short of turning 18 and asked the review applicant what care she required that her mother was permanently incapacitated from giving at that time. In response he said her mother could not provide a father figure and could not provide the means for her to fulfil her academic dreams. He said if the visa is granted she will study English in Australia.

28. In relation to the current circumstances of the visa applicant, the review applicant said she continues to live with her mother and siblings, staying with her grandmothers on a rotational basis. She is not attending school because she did not do well when she most recently attended.

29. In the 47CH visa application form the date the visa applicant completed high school was stated to be 2 December 2016. At hearing the review applicant said the visa applicant did not do well at school in 2016 and she stayed at home in 2017 and returned to boarding school in 2018. Prior to the hearing the review applicant provided school reports for terms 2 and 3 in 2017 which he claimed were the visa applicant’s school reports. The reports did not include the name of the student and following the hearing the review applicant provided school reports in the visa applicant’s name which recorded results for study in 2017 and 2018. The Tribunal asked the review applicant about the inconsistency in the information provided in the 47CH form and the school reports and his oral evidence. He said he must be confused because he lives in Australia and the visa applicant is in Zimbabwe.

30. Prior to the hearing the review applicant provided a document with the heading Overview from UNAIDS website and which provided information about people living with HIV in Zimbabwe in 2018. The Tribunal considers that report unhelpful. The very specific issue before the Tribunal is the visa applicant’s mother’s incapacity to care for the visa applicant and a generalised report about the situation in the country does not address that issue and the specific circumstances of the parties.

31. The Tribunal noted that the medical reports provided prior to the hearing did not include information with respect to the visa applicant’s mother’s previous or planned treatment. The Tribunal noted country information with respect to HIV services and treatment in Zimbabwe prepared by the Department of Home Affairs dated 12 August 2019 which says antiretroviral therapy is both widely available and free to access in Zimbabwe. Following the hearing the review applicant provided a medical report dated 2 December 2019 from Dr Mubengegwi in which he provided similar information to his previous reports and said the visa applicant’s mother’s body functionality is very limited. He said current treatment is medication and this includes antiretrovirals.

32. The Tribunal found the review applicant to be a credible witness. He said he and his wife want the opportunity to look after the visa applicant and to provide a home for her and eventually for her two younger siblings. He said his family had been affected by AIDS and he had lost his father, brother, uncles and aunts to the disease. As discussed at hearing the Tribunal’s focus is on whether the visa applicant meets the criteria for the visa.

33. For the purposes of determining whether the visa applicant cannot be cared for by her mother as required by r.1.14(b), the Tribunal had regard to the mother’s health, the visa applicant’s cultural environment, the nature of care the visa applicant required at the time of application and continues to require and the visa applicant’s age.

34. The Tribunal accepts that the visa applicant’s mother was diagnosed with HIV in 2015 and that although the condition can be treated, it cannot be cured. The Tribunal accepts that the visa applicant’s mother has been limited in the physical care she has been able to provide due to her illness. The extent of her physical limitations at the time of application was not made clear in the medical reports and the report dated 10 October 2017 said she was in poor health. In a report dated more than four months after the time of application her current symptoms were stated to be general body weakness, mental confusion and inability to walk. The Tribunal has concerns about the reliability of the medical evidence because in his earlier reports Dr Mubengegwi made unqualified statements that the visa applicant’s mother is unable to walk and is bedridden. The review applicant’s evidence was that on good days the mother is able to get out of bed and sit outside.

35. In relation to care of the visa applicant and her cultural environment the Tribunal notes that at the time of application shelter and most likely food was provided by her grandmothers and household tasks were shared.

36. The Tribunal has formed the view that due to the visa applicant’s age at the time of the application her physical needs may not have been significant. However, the term ‘cared for’ is not limited to physical care. It also includes financial, emotional, psychological and other forms of care that a parent may normally provide. In this case, the Tribunal accepts that the review applicant has provided financial assistance to his family in Zimbabwe and in doing this he has financially assisted the visa applicant. The evidence was that financial assistance is also provided by the visa applicant’s mother’s family (her uncles) and the review applicant’s sister. The Tribunal accepts that the visa applicant’s mother cannot financially support the visa applicant. The Tribunal has taken into account that the visa applicant was at the time of application (and remains) a young woman in her late teens and considers that she would rely on her mother for emotional and psychological support. The Tribunal was unable to contact the visa applicant by phone however the review applicant conceded that her mother would provide this support. The Tribunal does not find the mother incapable of providing such care and support due to her physical condition.

37. The Tribunal has a great deal of sympathy for the visa applicant’s situation and respect for the good intentions evident in the endeavours of the review applicant to arrange for the visa applicant to migrate to Australia so that he and his wife can care for her. Nevertheless, it is not satisfied that at the time of application the mother had a condition that rendered her permanently incapacitated from providing the visa applicant with emotional and psychological support. At the time of application the visa applicant’s physical needs were limited and were provided by family members.

38. Accordingly, r.1.14(b) was not met at the time of application and continues not to be met at the time of decision. Given the findings above, cl.117.211(a) is not met.

39. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211(a), and this is not only because one of the visa applicants has turned 18. It follows that cl.117.221 is not met.

    Has the applicant been adopted by the Australian relative?

40. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

41. The applicants have not claimed, and there is no evidence before the Tribunal, that at the time of application the visa applicant met the alternative criteria in cl.117.211(b).

42. Accordingly, the Tribunal finds that at the time of application the visa applicant did not meet cl.117.211(b).

43. Given the findings above, cl.117.211 is not met.
    Conclusion

44. 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

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

    Christine Kannis
    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.