NGWABI (Migration)

[2019] AATA 6036

NGWABI (Migration) [2019] AATA 6036 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs JULIE NGWABI

VISA APPLICANT:  Mr Goitsimudimo Moyo

CASE NUMBER:  1816653

DIBP REFERENCE(S):  F2017/049897 OSF2017/049897

MEMBER:Peter Smith

DATE:20 December 2019

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 20 December 2019 at 9:57am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – meaning of ‘relative’ – cousin – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14

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 (the Minister) on 31 May 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. Mr Goitsimudimo Moyo (the visa applicant), a national of Zimbabwe, born on 23 May 2000, made a valid application to the Minister on 31 August 201 for the grant of a Child (Migrant) (Class AH) visa in which he claims to be the orphan relative of an Australian relative who is an Australian citizen, namely his sponsor and the review applicant, Julie Ngwabi.  The visa applicant also claimed that he had not turned 18 years old at the time of visa application, is not in a de facto or spouse relationship and cannot be cared for by either parent because his mother is deceased and his father’s whereabouts are unknown.

3. In her approved child sponsorship form lodged with the Department of Immigration and Border Protection (the Department) in support of the visa application, the review applicant claims to be the aunt of the visa applicant however information provided to the Department by the review after the visa application was lodged indicated that the review applicant and the visa applicant are cousins.

4. Under s.65 of the Act, upon the making of a valid application, the Minister may grant a non-citizen a visa if the prescribed criteria for the grant of the visa are met. Item 1108 of Schedule 1 to the Migration Regulations 1994 (the Regulations) provides for the grant of a Child (Migrant) (Class AH) visa. At the time of visa application, (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 Regulations). Clause 117.211(a) provides that a visa applicant is an orphan relative of an Australian relative of the applicant. 

6. The delegate refused to grant the visa because the visa applicant did not at the time of visa application meet the definition of orphan relative as defined in r.1.14(a)(iii) of the Regulations, and therefore cannot satisfy cl.117.211.

7. On 6 June 2018 the review applicant made an application to the Tribunal for review of the delegate’s decision to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa.  Attached to her application is a copy of the delegate’s Decision Record dated 31 May 2018.

   THE TRIBUNAL HEARING

8. The application for review was heard by the Tribunal on 3 December 2019.  At the hearing the review applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments in relation to the issues relating to her case.  The review applicant’s husband, Bormwell Ngwabi also attended the hearing to give evidence in support of the application for review.  The review applicant and her husband were supported at the hearing by their son, Arnord Ngwabi.  The visa applicant who is in Zimbabwe was not contacted by the Tribunal to give oral evidence at the hearing.

9. The review applicant was not represented in respect of the review by a registered migration agent.

10. The Tribunal hearing was conducted with the assistance of an interpreter in the Ndebele (Zimbabwe) and English languages.

11. For the following reasons, the Tribunal has decided that the matter should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the visa applicant is an orphan relative of an Australian relative under cl.117.211 of Schedule 2 to the Regulations.

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

13. 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.

14. ‘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.  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. 

15. In the present case, the review applicant and visa applicant claimed to be aunt and nephew however, the further information provided by the review applicant in April 2018 to the Department indicated that the parties are cousins.  The information provided to the Department by the review applicant is referred to in the delegate’s Decision Record, a copy of which was provided by the review applicant when she applied to the Tribunal for review of the delegate’s decision to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa.

16. At the hearing the Tribunal informed the review applicant that in conducting the review it was bound to follow the same law that was applied by the delegate which included the legal definition of relative under r.1.14 of the Regulations and that the Tribunal had no discretion to waive those requirements.  The Tribunal informed the review applicant that it was unable to make a favourable decision in respect of her application.

17. The Tribunal informed the review applicant that the visa applicant cannot satisfy the requirements of cl.117.211 because he is not an orphan relative of an Australian relevant because cousin is not a relative for the purposes of the definition in r.1.14(a)(iii) of the Regulations.

18. The review applicant told the Tribunal that she had been advised by an officer within the Department that the question of whether the visa applicant is an orphan relative of an Australian relative could be addressed further by providing further evidence.  She told the Tribunal that she relied on this advice to decide not to commence adoption proceedings in the High Court of Zimbabwe.  However, as the visa applicant is now over 18 years of age that option is no longer available to her and the visa applicant.

19. The review applicant told the Tribunal that the visa applicant’s mother always wanted the review applicant to raise her son.  She told the Tribunal that since the age of five, the visa applicant has known her and identified her as his mother and/or aunt.

20. If the Tribunal had any discretion available on review it would have exercised that discretion in the review applicant’s favour.  The Tribunal found the review applicant to be very honest and genuine.  She has provided extensive documentary evidence that shows that the review applicant would meet the other legal requirements for the visa. 

21. In the circumstances, the visa applicant is not an orphan relative of an Australian relative at the time of visa application.  Furthermore, the visa applicant is 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.

    CONCLUSION

22. Accordingly, r.1.14(a)(iii) was not met by the visa applicant at the time of visa application and does not continue to be met at the time of this decision.

23. Given the findings above, cl.117.211 is not met at the time of visa application.

24. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, and this is not only because the visa applicant has turned 18.  It follows that cl.117.221 is not met.

    DECISION

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

    Peter Smith
    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.