Nadeem (Migration)

Nadeem (Migration) [2020] AATA 5888 (6 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Noman Nadeem
CASE NUMBER:  1933827
DIBP REFERENCES:  CLF2018/360455; CLF2019/103757
MEMBER:Rosa Gagliardi
DATE:6 November 2020
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 837 (Orphan Relative) visa:
·cl.837.213 of Schedule 2 to the Regulations; and
·cl.837.221 of Schedule 2 to the Regulations.

Statement made on 06 November 2020 at 3:03pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan relative) – ‘orphan relative’ – no parental care – history of family violence perpetrated by applicant’s father – mother ‘permanently incapacitated’ – Major Depressive Disorder with Psychotic features – treatable condition – relevant cultural and economic factors – mental health care in Pakistan – father ‘whereabouts unknown’ – advertisements – report of local police station – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 837.213, 837.221
CASES
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 14 November 2019 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 14 November 2018. 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). Relevantly to this case, they include cl.837.213 which requires the applicant to be an orphan relative of an Australian relative of the applicant (as defined).
The delegate refused to grant the visa because the applicant did not meet cl.837.213 of Schedule 2 to the Regulations because it was not accepted that the applicant’s mother was incapacitated and that the father’s whereabouts were unknown.
The Tribunal has a good deal of evidence before it, including a decision made by another Member in relation to a sibling of the applicant (Decision 1609497, dated 8 February 2017). This decision was favourable to the applicant’s sibling, Mr Muhammad Afaq, and the Member undertook a detailed analysis of the terms: “incapacity” and; “whereabouts unknown” in that decision. In that decision it was considered that the applicant’s mother was unable to care for the applicant’s sibling due to diminished mental capacity and that the applicant’s sibling’s father’s whereabout were unknown.
Given that the applicant and sibling share the same set of circumstances, the Tribunal has while conducting a de novo review in this matter, had regard to the persuasive material in Decision 1609497, but has also relied on the strength of the sponsor’s credibility and the submission made to the Tribunal as it is currently constituted.
Furthermore, the Department confirmed that it had no concerns about the applicant subject of this review, being a relative (as defined in r.1.03) of his uncle, the sponsor, and accepted that the applicant at the time of application was under the age of 18.
The Tribunal has also gone through the evidence carefully and has found it to be credible and consistent over a significant period of time.
Given the Tribunal’s acceptance of the facts as stated, the Tribunal decided it was able to make a decision on the material before it to expedite the matter.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, Mr Sajjad Ahmad Ranjha is the relevant Australian relative.
For the reasons below, the Tribunal finds that the applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.837.213(a) is met and continues to be met at the time of decision and is only not met at time of decision because the applicant has turned 18 (he is in fact 19 years of age currently).
The definition of “orphan relative” is found in Regulation 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.
The requirement in r.1.14 is cumulative meaning if one fails all fail.
Age – r.1.14(a)(i)
Regulation 1.14(a)(i) requires that the applicant has not turned 18. At the time of application, the applicant was 17 years of age. The Tribunal notes that the Department did not have concerns about the applicant’s age. Accordingly, r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.
Spouse or de facto partner – r.1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the applicant does not have a spouse or de facto partner. The applicant is now 19 years of age and the Tribunal has no reason to believe that the applicant was in a relationship at the age of 17 when the application was made, and that he is so now. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision by virtue of cl.823.214.
Relative – r.1.14(a)(iii)
Regulation 1.14(a)(iii) requires the 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.
The sponsor is the brother of the applicant’s mother. A Pakistan Family Register Certificate, NIC34402-1560000-8, issued on 28 January 2015 identifying the sponsor’s family composition was relied upon by the Department to arrive at the conclusion that the applicant is a relative of the sponsor as defined. The Tribunal also does not find that this matter is in dispute and 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)
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:
For the purposes of the present case, the external frame of reference for ``incapacitation'’ in relation to an orphan relative is that the relative, who is under 18 years of age, cannot be cared for, that is looked after, by a parent because that parent is permanently incapacitated from doing so. The requisite ``incapacitation'’ must relate to an impairment of a parent's power, capacity or ability to care for his or her child. In that context, incapacitation will include impairment of the physical or mental faculties required to care for a child. However, I see no reason to treat physical or mental impairment as exhaustive of the circumstances in which the relevant incapacity can occur. Obviously, the facts of each case will need to be
considered in the context of the particular circumstances of the relevant parent, including the social or cultural environment within which the incapacitation of that parent is said to be occurring. The incapacity referred to in reg 1.14 can occur in any community outside of Australia. Thus, a range of social or cultural circumstances might, in an appropriate case, result in incapacitation to care for a child. For example, in some communities a mother who relinquishes her child after birth might justifiably fear that she will be cast out of the society in which she has lived, and on which she depends, if found to have given birth to a child out of wedlock or outside of other socially accepted circumstances. In that situation it would be more accurate to say that the cultural norm of her society, rather than any choice by her, has resulted in her being unable to care for her child.
Circumstances of the applicant’s mother
A consistent narrative has been provided in respect of the applicant’s sibling,

Mr Muhammad Afaq’s, family background involving family violence perpetrated against the siblings’ mother by their father – matters of fact that the Department did not appear to refute in its decision. The applicant’s father, Nadeem Akhtar, travelled to South Korea regularly since 2005 and country information demonstrates that there is a reasonably significant Pakistani community there.[1] Mr Akhtar, it is claimed, wanted to take a new wife as is customary but Samia Sultana, his first wife and mother of the applicant, was not in agreement. Their relationship became turbulent and Mr Akhtar used physical and other violence towards Ms Sultana and their children.
[1] AAT Decision: 1609497, dated 8 February 2017, p.7.
A domestic violence police report dated 12 April 2010, issued by Kuthiala Sheikhan police station, Pakistan refers to an incident allegedly perpetrated by the applicant’s father and family. The report outlines harassment by the applicant’s father’s family against his mother as he did not accept her opposition to take another wife. The report also gives details of the applicant’s father’s unsuccessful abduction of the applicant’s brother, Mr Muhammad Afaq, at the family home in Pakistan.
Given the consistent account of the family’s history since 2010, the Tribunal accepts that the family members were victims of family violence perpetrated against them by Mr Nadeem Akhtar.
It is unclear whether this history of abuse led to Ms Samia Sultana’s mental health problems. What is clear is that the applicant’s mother suffers from serious psychiatric conditions.
Translated police reports were submitted about these matters to the Department in respect of the applicant’s brother, Mr Muhammad Afaq’s, application. Expert medical evidence about the applicant’s mother’s condition was also provided.
To determine the nature of the applicant’s mother’s condition she was also referred to a panel doctor, a clinical psychologist, who found as follows:
Based on detailed history, psychometric evaluation, formal and informal assessment it is concluded that Mrs Samiya is diagnosed with Major Depressive Disorder with Psychotic features (code: 296.24(F32.3) according to DSM V criteria). The client is unable to manage her day to day activities properly and look after her children properly. She is currently unable to contribute positively in upbringing of her children. Her children are passing through crucial ages where they need proper guidance in their personality development.
The psychologist provided the following prognosis:
Short term prognosis is not favourable. Long term prognosis can be favourable if client properly follow the treatment plan. Proper management should be through Medicine Therapy, support psychotherapy and CBT for Depression and Psychosis.
For the purposes of the medical examination for an Australian visa, Samia Sultana was also examined by a doctor at the IOM Islamabad Clinic, who found that Samia Sultana had a “known case of severe depression with psychotic features”, who had tried to kill herself and her children and she needed “regular follow ups and treatment to attain favourable prognosis”.
The Department accepted the diagnosis and prognosis but considered that the applicant’s mother’s condition was treatable and therefore she was not incapacitated and unable to care for the applicant. The Tribunal would agree with this interpretation were it not for important relevant cultural and economic factors that render amelioration, let alone a complete cure, very difficult to attain by Ms Samia Sultana. The Tribunal might also reach such a conclusion if the applicant’s mother had been living in Australia or some like country.
For example, in the Department’s decision it is stated that the applicant’s mother could travel to Lahore which is 6 to 8 hours away from the rural area in which Samia Sultana lives. As the sponsor has set out in his submission to the Tribunal, the applicant’s mother is in no condition to earn an income to pay for specialist treatment.
Furthermore, limited resources and cultural perceptions of mental health issues represent significant barriers to the applicant’s mother being able to access good quality care in Pakistan. Current country research shows:
According to the latest report, over 15 million people in Pakistan are suffering from some form of mental illness. But for a population of 220 million, only 400 trained psychiatrists exist with few state-run psychiatric hospitals and a small number of psychiatric units in teaching and general hospitals. In a traditionalist society, there is frequently a social disgrace together with discussing dysfunctional or abnormal behaviors as mental health problems and is generally described as a “shortcoming of character.[2]
[2]
WHO’s Mental Health Atlas 2017, reported that there were only four big psychiatric hospitals in the entire country[3]:
[3] World Health Organization: Mental Health Atlas. Geneva: World Health Organization, 2017.
Like many developing countries, Pakistan is struggling in several health and social spheres, which have substantial impact on the health system of the country. Healthcare delivery system in the country includes both state and nonstate and profit and not-for-profit (voluntary sector) service provisions. The country’s health sector is equally marked by urban– rural disparities in healthcare delivery and an imbalance in the health workforce, with insufficient health professionals, nurses, paramedics, and skilled health workers, especially in the peripheral areas.

In terms of mental health, Pakistan is no exception for its low priority for mental health when compared to many other developing countries. It is true that needs for the care of patients with mental illness have been recorded in this region over many centuries, and local healthcare systems including Ayurveda and Unani treatment models had a significant influence on healthcare over the centuries. Cultural and religious beliefs on indigenous and traditional healthcare were always apparent in the local systems and had an important influence on perception, awareness, and choices for various health-related treatment modalities. Healthcare systems and particularly mental health systems had a major shift following colonization by the British. Influenced by British systems and custodial nature of care, treatment and management of the mentally ill were mostly by establishing mental hospitals in the Indian subcontinent. Lahore Mental Hospital was an example of this type of service that continues serving large part of the country even after its independence in 1947.
… In Pakistani culture, it is commonplace to approach spiritual or traditional healers in cases of physical or mental illnesses. Faith healing is the traditional way of treatment for mental ailments in this culture, as people usually perceive mental illness to be the result of supernatural influences. Use of faith healers is irrespective of socio-economic factors as it usually depends on the person’s belief toward spiritual healing. Faith healers are a major source of care for people with mental health problems in Pakistan, particularly for women and those with little education. Commonly used faith-healing techniques involve repetition of Quranic verses, “dum,” and use of “taweez” or ropes on the body. Apart from those, several fake faith healers use various other methods, some of which can be dangerous. People who consume traditional healer services or their resources are usually considered deprived or uneducated.
….
Like many developing countries, Pakistan is struggling in several health and social spheres, which have substantial impact on the health system of the country. Healthcare delivery system in the country includes both state and nonstate and profit and not-for-profit (voluntary sector) service provisions. The country’s health sector is equally marked by urban– rural disparities in healthcare delivery and an imbalance in the health workforce, with insufficient health professionals, nurses, paramedics, and skilled health workers, especially in the peripheral areas. In terms of mental health, Pakistan is no exception for its low priority for mental health when compared to many other developing countries…
In Pakistani culture, it is commonplace to approach spiritual or traditional healers in cases of physical or mental illnesses. Faith healing is the traditional way of treatment for mental ailments in this culture, as people usually perceive mental illness to be the result of supernatural influences. Use of faith healers is irrespective of socio-economic factors as it usually depends on the person’s belief toward spiritual healing. Faith healers are a major source of care for people with mental health problems in Pakistan, particularly for women and those with little education. Commonly used faith-healing techniques involve repetition of Quranic verses, “dum,” and use of “taweez” or ropes on the body. Apart from those, several fake faith healers use various other methods, some of which can be dangerous.
…..

[4]
People in society have been silencing the mental health talk for one reason or another since time immemorial. When recognizing mental health issues as a concern, the greater part of the community always seems to be in the denial mode. It is a pity that Pakistan has limited political will and priorities for mental health. This unfavorably influences the quality of care provided for people suffering with mental illnesses. Societal circumstances, sadly, cause a person to fall more victim to his/her dilapidated mental condition, and the outcome seems almost inevitable after a few failed attempts to solve the issue through faith and spiritual healing. Consultation with the medical specialist has never viewed as a need or even a choice. People, especially the women, who suffer from mental health problems, feel humiliated to discuss their visit to a therapist because of the dread of being judged or thought as an insane person. The consequence is often tragic, with lives being devastated and even lost due to this.[4]

It is not difficult to see how in this context, it is unreasonable to expect that the applicant’s mother’s chances in obtaining curative psychiatric assistance is any where near possible. From the evidence submitted it appears that the applicant’s mother has succumbed to a faith healer and the Department made the conclusion that as she refuses to seek more Western-type assistance, she is not incapacitated. Nonetheless, it is pertinent that (a) such Western means are minimal in availability; and (b) it appears that seeking faith healing is the norm in a society that views mental health difficulties as a spiritual affliction.
The Department also noted that it appeared that the sponsor was not providing assistance to the applicant’s mother to seek Western-type assistance, yet the assistance is not generally available and further, from other evidence sighted by the Tribunal it would appear that in the circumstances, the sponsor is helping to the extent that he can.
In all the circumstances, the Tribunal is satisfied that the applicant’s mother, Samia Sultana, is permanently incapacitated.
The circumstances of the applicant’s father
Evidence has been submitted to support the contention that the father’s whereabouts were unknown or that he was presumed deceased. The Tribunal is cognisant that an unwillingness to care for a child does not mean the hypothetical carer is unable to care.
Newspaper articles were submitted demonstrating that between 2013-2018 advertisements were taken out in respect of locating the applicant’s father without result. The Tribunal places some weight on these advertisements.
In addition, a copy of a letter from the applicant’s uncle to the local police station was submitted in which information was sought about the applicant’s father’s whereabouts. This appeared to yield no result also.
A copy of the police response was submitted commenting on the status of their investigations. A further detailed statement was provided by Mr Afzaal Ahmad (the applicant’s uncle) describing in detail the efforts made by the family to locate Mr Nadeem Akhtar, whom the applicant states he and his family have never seen since 2010. From the police report it appears that the applicant’s father was residing in South Korea and an address for Mr Nadeem Akhtar had been obtained by the applicant’s uncle in 2012. Despite efforts by the applicant’s uncles to obtain information from the Pakistani community in South Korea, they found nothing further, other than that as at 2012 he was in a relationship with a girl.
Hence, the last known whereabouts of the applicant’s father was in 2012 and the Tribunal accepts this to be the case. That the applicant travel all over South Korea or anywhere else outside Pakistan, to find his biological father, who clearly does not want to be found by him, is unreasonable, if indeed the applicant’s father is still in South Korea or anywhere else in the world, or even alive.
It has now been 8 years since the applicant’s family have had any information about their father’s whereabouts. Given the credibility of the sponsor and the consistency of the evidence across many years now, the Tribunal finds that as a matter of fact, the applicant’s father’s whereabouts are unknown.
The Tribunal has also taken into account the guardianship documents submitted reflecting that the sponsor has been granted guardianship of both the applicant and his brother,

Mr Mohammad Afaq. The Tribunal finds therefore that the applicant meets the definition of an “orphan relative” as defined.
Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.
Best interests – r.1.14(c)
Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.
The sponsor is an accountant who has his own family and can provide for the applicant’s emotional and physical needs. It is also in the best interests of the applicant to be together with his sibling, Mr Mohammad Afaq, in the family of the sponsor. No adverse information is before the Tribunal regarding the sponsor’s character or otherwise. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.
Conclusion
Given the findings above, cl.837.213 is met.
Further, the Tribunal finds that the applicant continues to satisfy the criterion in cl.837.213 or does not continue to satisfy the criterion in cl.837.213, but only because the applicant has turned 18. It follows that cl.837.221 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 837 (Orphan Relative) visa:
·cl.837.213 of Schedule 2 to the Regulations; and
·cl.837.221 of Schedule 2 to the Regulations.
Rosa Gagliardi
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.

Afzal Javed MBBS FRC Psych., Muhammad Nasar Sayeed Khan MBBS, FCPs (Psychiatry), Amina Nasar FCPs (Psychiatry), Alina Rasheed M.Sc, Taiwanese Journal of Psychiatry’, Year in Review 2020, Volume 34, Issue 1, accessed on
6 November 2020.

[2020] AATA 5888

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