Ng (Migration)

[2019] AATA 5671

Ng (Migration) [2019] AATA 5671 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ka Hang Karen Ng

CASE NUMBER:  1702941

DIBP REFERENCE(S):               CLF2016/22892 CLF2016/55982

MEMBER:Michael Cooke

DATE:19 September 2019

PLACE: Sydney

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

·cl.837.214 of Schedule 2 to the Regulations

·cl.837.221 of Schedule 2 to the Regulations;

Statement made on 19 September 2019 at 3:46pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan Relative) – orphan relative of an Australian relative – applicant’s mother of unknown whereabouts – continuing to satisfy the criterion at the time of decision – applicant’s mother disappeared in Hong Kong – court orders regarding disappearance – sponsor’s court permission to remove applicant from Hong Kong – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14; Schedule 2 cls 837.213, 837.214, 837.221

CASES

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 2 February 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 April 2016. 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.

3. The criteria for a Subclass 837 visa are set out in Part 837 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not meet cl.837.213 of Schedule 2 to the Regulations because she did not meet reg.1.14(b).

4. The applicant was represented in relation to the review.

5. A significant amount of additional information has been sent to the Tribunal by the parties (T1, ff.7-59). Apart from personal submissions addressing adverse issues in the case, there are copies of all the significant Hong Kong sourced legal documentation confirming the applicant’s ability to meet the criteria in question.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the biological mother of the visa applicant is ‘of unknown whereabouts’ pursuant to reg.1.14(b).

   837.21—Criteria to be satisfied at time of application

   837.211

   If the applicant is a person to whom section 48 of the Act applies, the applicant:

   (a) has not been refused a visa or had a visa cancelled under section 501 of the Act; and

   (b) since last applying for a substantive visa:

   (i) has become an orphan relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii) became an orphan relative of the person mentioned in subparagraph (i) and is no longer an orphan relative only because the applicant has been adopted by that person.

   837.212

   The applicant is:

   (a) the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or

   (b) a person who:

   (i) is not the holder of a substantive visa; and

   (ii) immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa; and

   (iii) satisfies Schedule 3 criterion 3002. Authorised Version F2017C00582 registered 20/07/2017

   Schedule 2 Provisions with respect to the grant of Subclasses of visas

   Subclass 837 Orphan Relative

   Clause 837.213

   837.213

   The applicant:

   (a) is an orphan relative of an Australian relative of the applicant; or

   (b) is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).

   837.214

   The applicant is sponsored:

   (a) by the Australian relative, if the relative:

   (i) has turned 18; and

   (ii) is a settled Australian citizen, a settled Australian permanent resident, or a settled eligible New Zealand citizen; or

   (b) by the spouse or de facto partner of the Australian relative, if the spouse or de facto partner:

   (i) has turned 18; and

   (ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

   (iii) cohabits with the Australian relative.

   837.22—Criteria to be satisfied at time of decision

   837.221

   The applicant:

   (a) continues to satisfy the criterion in clause 837.213; or

   (b) does not continue to satisfy that criterion only because the applicant has turned 18.

   Is the applicant an orphan relative of an Australian relative?

8. 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.

9. ‘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 the applicant is the niece of the relevant Australian relative - her uncle - Hok Sum Yuen.

10.   For the reasons below, 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.

Age – r.1.14(a)(i)

11.   Regulation 1.14(a)(i) requires that the applicant has not turned 18. The applicant’s age at time of application was 16.  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)

12.   Regulation 1.14(a)(ii) requires that the applicant does not have a spouse or de facto partner. The applicant did not have a spouse or de facto partner at the time of application or decision. 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)

13.   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.

14.   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)

15.   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.

16.   The applicant (DOB 12 April 1999) has been cared for by her relatives since the demise of her father in 2010. Since her mother’s disappearance in April 2012 they have had the care of her full time both in Hong Kong and Australia. She did not visit her daughter at all in Hong Kong since April 2012 despite her living with her relatives - a fact known to her mother. Her biological mother left her flat abruptly leaving her possessions behind including her Hong Kong passport which was handed back to the authorities. She has not been sighted officially or actually since that date. Her relatives have formal custody of her under Hong Kong law. The applicant has been living in Australia as a student since 2016.  She has addressed the Tribunal as follows:

I am writing this statement as part of the submission of my appeal Relative (subclass 837) visa. Please re-consider my case.

In addition to this statement, I also include the notification letter and decision record from the Department of Immigration and Border Protection, a statement from the sponsor of my application (my uncle and guardian — Hok Sum YUEN), four affirmations made by the sponsor's wife (my paternal aunt and other guardian —Sandy Kam Ha NG), IMMI Request Checklist and

Details 27 June 2016 and an e-mail (both in Chinese and English translated copies) from my maternal aunt who is living in Mainland China.

The statement from my sponsor indicated the difficulties we encountered while trying to locate my mother and the reasons why we decided to put in the appeal.

The affirmations from Aunt Sandy are to provide reasons to support my sponsor's statement. Three of the affirmations should have been submitted with my original application. The 4th is the one my aunt made during her effort to apply the court order to permanently removed me from Hong Kong to Australia. All of the affirmations were made under oath.

The e-mail from my aunt indicated our effort to locate my mother through the Mainland China contact although the effort is limited due to the circumstance.

If you can address my appeal at your earliest convenience is most appreciated.

17.   The sponsor has provided the following information to the Tribunal:

To claim her mother is missing is not just what we say. It has been satisfied by the District Court of the Hong Kong Special Administrative Region. The attached four affirmations that my wife made under oath and the court orders granted showed that the court allowed the Substituted Service of Summons to Karen's mother be sent to Karen's maternal grandmother and aunt's Mainland China address and inserted advertisements in local newspaper. These clearly show that we could not find the mother. Also both the 2013 and 2016 court orders were granted in the absence of the mother in the court hearings. Prior to obtaining the court order from District Court of the Hong Kong Special Administrative Region my wife submitted an affirmation (4th Affirmation). In the affirmation my wife stated under oath the background of the application, the current situation of Karen and the reason why we apply for the court order. She also applied a substituted service of summons to the missing mother. Please understand that this affirmation is done under oath. From points 28 and 29 under the title "Substituted Service of Summons" in the 4th Affirmation my wife clearly declared Karen's mother has not been located.

The District Court of the Hong Kong Special Administrative Region based on the 4th Affirmation and the previous court order granted on October 2013 granted permission to my wife and me to removed Karen from Hong Kong to Australia. This new court order has been sent to the Department of Immigration and Border Protection on October/November 2016.

It mentions all the requests on that date but not the one about the new court order I mentioned above. It seems to us that the Department of Immigration and Border Protection has not paid enough attention to or even overlooked this important document. After all it is something they asked for. As the court order has been granted means the District Court of the Hong Kong Special Administrative Region has satisfied with the fact that the mother's whereabouts is unknown.        

18.   Following further consideration of the main issue in the case (and the receipt of official documentation allowing the applicant to leave Hong Kong permanently to live with the sponsor in Australia) the Tribunal is satisfied that the applicant’s mother is ‘of unknown whereabouts’

19.   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)

1. 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 Tribunal is satisfied that - in view of the length of time the applicant has been in the care of her sponsor’s family - there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.  Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

21.   Given the findings above, cl.837.213 is now met.

22.   The Tribunal finds that the applicant 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.

23.   Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

24.   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

· cl.837.214 of Schedule 2 to the Regulations

·cl.837.221 of Schedule 2 to the Regulations

Michael Cooke
Senior 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.