Naidoo (Migration)

[2024] AATA 647

Naidoo (Migration) [2024] AATA 647 (29 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Thrivalen Krishna Naidoo

VISA APPLICANT:  Miss Surayah Ally

CASE NUMBER:  2105319

HOME AFFAIRS REFERENCE(S):          F2020/816750

MEMBER:Edward Howard

DATE:29 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 29 January 2024 at 11:39am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – at the time of application the visa applicant’s father’s whereabouts were clearly known – neither of the visa applicant’s parents were dead, permanently incapacitated or of unknown whereabouts – applicant cannot be considered an orphan – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr, 1.03, 1.14, Schedule 2, cls 117.111, 117.211,117.221

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 Home Affairs on 10 March 2021 to refuse to grant the review applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review applicant applied for the visa on 23 March 2020. 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 review applicant is Dr Thrivalen Krishna Naidoo, aged 45 years, an Australian citizen. The visa applicant is Miss Surayah Ally, aged 21 years, a citizen of South Africa.

4. The review applicant claims to be the maternal uncle of the visa applicant.

5. The delegate refused to grant the visa because the delegate found that the visa applicant did not meet the requirements of reg 1.14(a)(iii) and reg 1.14(b) and therefore failed to satisfy cl 117.211 of Schedule 2.

6. The review applicant appeared before the Tribunal on 19 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Miss Surayah Ally.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include a clause 117.211.

9. Clause 117.211(a) requires that, at the time of application, the visa applicant is the orphan relative of an Australian relative. Clause 117.211(b) requires that, at the time of application, the visa applicant is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in cl.117.211(a). 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.

10. ‘Orphan relative’ is defined in reg.1.14 of the Regulations, which is extracted in the attachment to these reasons.

11. 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: per cl.117.111. 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): reg. 1.03. It is claimed that the review applicant is the relevant Australian relative.

12. As noted above, the delegate refused to grant the visa as the visa applicant did not meet the requirements of reg 1.14(a)(iii) and reg 1.14(b) and therefore failed to satisfy cl 117.211 of Schedule 2.

13. The Tribunal will consider these two specific requirements of reg 1.14 in this decision record, for the purpose of assessing whether the visa applicant meets cl.117.211 at the time of application.

    Relative – reg 1.14(a)(iii)

14. 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

15. The review applicant claims to be the brother of the visa applicant’s mother and therefore the visa applicant’s maternal uncle. In this regard, the parties provided the Department and Tribunal with various evidence including, letters from the review applicant and the visa applicant, letters from the visa applicant’s mother and father, a ‘Consent by Minor’ document sworn by the visa applicant acknowledging that the review applicant had been granted permanent legal guardianship of her by her biological parents and a ‘Letter of Authority’ document signed by her parents granting permanent guardianship to the review applicant.

16. The review applicant also provided the personal identification books of his parents, which they hold under South African law. He has also supplied his own birth certificate, the visa applicant’s birth certificate and the visa applicant’s mother’s birth certificate. Having regard to all of the evidence, the Tribunal finds that the visa applicant is the daughter of the review applicant’s sister and hence his niece and therefore a relative of the review applicant as required by regulation 1.14(a)(iii).

    No parental care – reg 1.14(b)

17. 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.

18. 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.

19. The Tribunal notes that the Department received: a Form 47CH, Application for migration to Australia by child from the visa applicant; a Form 40CH, Sponsorship for a child to migrate to Australia  from the review applicant; and a Form 1229, Consent to grant an Australian visa to a child under the age of 18 years signed by the mother and father of the visa applicant.

20. Each of these documents identifies Mr Ilyaas Sayed Ally as the father of the visa applicant and Ms Nirvashni Naidoo as the mother of the visa applicant. The Form 40CH and the Form 1229 both identify the father’s place of residence in Chatsworth, South Africa. All three documents identify the visa applicant’s place of residence (with her mother) in Silverglen, South Africa.

21. Additionally, the Tribunal notes that the visa applicant’s father signed a letter in support of her application dated 25 September 2019 and also signed the ’Letter of Authority’ with the visa applicant’s mother, although that document is undated.

22. The visa applicant’s father’s letter of 25 September 2019 stated, inter alia, as follows:

    “I understand that Surayah is interested in relocating to Australia to live with her uncle. I am currently unable to commit financial responsibilities for future study prospects, as I have other commitments to my wife and other children. I hereby give permission for Surayah Ally to be under the care of her uncle, Thrivalen Naidoo.

    I feel that this is in the best interests of Surayah and wish her well in her future”.

23. The visa applicant’s mother’s letter of 25 September 2019 stated, inter alia, as follows:

    “My only daughter, Surayah Ally (DOB: 19/08/2003) dreams of pursuing a career as a medical doctor. As a mother, I feel the need to make her dreams a reality, but also at a sacrifice to myself. She is an aspiring young lady that can achieve the impossible if she sets her mind to it. She has produced very good results at school and I fear that with the current conditions in the country, she would not be able to excel to her full potential.

    I am also not in a financial position to support her future needs and university studies. Currently, I am struggling to make ends meet. Surayah’s biological father and I have divorced for 10 years. He has since remarried and has two other children ages two and seven. Surayah’s contact and financial support with their (sic) biological father is minimal.

    … I had a long period of unemployment and only recently been reemployed in a call centre. I work as a call centre manager….”

24. The visa applicant gave evidence that her mother is currently in a managerial role with a call centre company.

25. The requirement of the legislation is that the parents cannot, as distinct from will not, care for the child, and only because of the prescribed reasons. Accordingly, an applicant cannot be considered an orphan merely because his or her parents have abrogated their responsibility to provide care or fulfil their parental role.

26. By reference to regulation 1.14(b), the visa applicant’s evidence is that she lives with her mother, grandfather and brother and there is no evidence that her mother is dead, permanently incapacitated or of unknown whereabouts, either at the time of application or the time of this decision.

27. With regards to the visa applicant’s father, there is no evidence before the Tribunal that he is either dead or permanently incapacitated. As to his whereabouts, whilst the Tribunal accepts the visa applicant’s evidence that she is not aware of his current address and has not spoken to him since 2019 and not seen him in person since 2016, she did give evidence that her and her brother sent a text message to their father towards the end of 2023 to tell him about the University academic results, although they received no response from him.

28. Clearly the review applicant and the visa applicant were aware of her father’s whereabouts at the time that the application and supporting documents were prepared and signed, between approximately September – November 2019. Some level of contact existed between the parties and the visa applicant’s father at this time. Therefore, at the time of application the visa applicant’s father’s whereabouts were clearly known.

29. Having had regard to all of the evidence, the Tribunal finds that at the time of application neither of the visa applicant’s parents were dead, permanently incapacitated or of unknown whereabouts.

30. Accordingly, at the time of application, regulation 1.14(b) was not met by the visa applicant.

31. Given the above findings, 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

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

    Edward Howard
    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.