Ogad (Migration)

[2023] AATA 4257

Ogad (Migration) [2023] AATA 4257 (12 December 2023)

1. DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Master Kian Ogad

   REPRESENTATIVE:  Mr Garry Frederick Howard (MARN: 9804095)

   CASE NUMBER:  2203758

   HOME AFFAIRS REFERENCE(S):          BCC2021/2106496

   MEMBER:Kira Raif

   DATE:12 December 2023

   PLACE OF DECISION:  Sydney

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

   Statement made on 12 December 2023 at 3:33pm

   CATCHWORDS
   MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan Relative) – application made more than 12 months after last substantive visa held – mother dead and no contact with father – legal guardianship and long-term care by sister – no evidence of adoption – little or no support in home country, lengthy processing time for offshore visa applications and settled life in Australia – strong compassionate circumstances – referred for ministerial consideration – decision under review affirmed

   LEGISLATION
   Migration Act 1958 (Cth), ss 65, 351
   Migration Regulations 1994 (Cth), Schedule 2, cls 837.211, 837.212, Schedule 3, criterion 3002

   STATEMENT OF DECISION AND REASONS

   Application for review

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 February 2022 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The applicant is a national of the Philippines, born in April 2009. He applied for the visa on 2 November 2021. The delegate refused to grant the visa because the applicant did not meet cl 837.212 of Schedule 2 to the Regulations because the delegate found that the applicant did not meet the requirements of Item 3002 of Schedule 3 of the Migration Regulations.

4. The issue in the present case is whether Item 3002 is met.

5. The applicant appeared before the Tribunal on 12 December 2023 to give evidence and present arguments. The applicant’s sister gave evidence on his behalf. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6. At the time the application was made, 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 (Cth) (the Regulations). Relevantly to this case, they include cl 837.

7. In the case of an applicant who did not hold a substantive visa at the time of application, and did not hold a Subclass 771 (Transit) visa immediately before ceasing to hold a substantive visa, cl 837.212 requires the applicant to meet Schedule 3 criterion 3002: cl 837.212(b).

8. Criterion 3002 is met if the visa application is validly made within 12 months after the relevant day within the meaning of subclause 3001(2).

   Does the applicant meet Schedule 3 criterion 3002?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant entered Australia on a Visitor visa on 1 May 2019. That visa ceased on 1 August 2019 and since that time the applicant held bridging visas but not substantive visas. As the application was made in November 2021, the delegate was not satisfied the applicant met the requirements of Item 3002 for the purpose of cl. 836.212.

10. In his submission to the Tribunal of 4 December 2023 the applicant states that he initially travelled to Australia in 2019 with his sister and was included as a dependent on his sister’s Partner application but was informed by the Department that this could not be done and his application was withdrawn. His agent made the application for another Visitor visa which was refused and an application for an Orphaned Relative visa but this could not be successful until his sister became a permanent resident, which occurred in 2021 and he lodged another application in November 2021. The applicant outlines his family history, stating that his father has never had any contact with him and his mother died when he was 4 years old and he was  brough up by his sister who obtained legal guardianship of him in March 2017. The applicant states that he has nothing in the Philippines, cannot live on his own and he refers to the lengthy processing time for an offshore application. The applicant also refers to his involvement in various activities in Australia.

11. Having regard to the information in the primary decision record, the Tribunal finds that the applicant’s last held a substantive visa was a Visitor visa which expired in August 2019. The applicant was not the holder of a substantive visa when the present application was made. He does not meet cl. 837.212(a). There is nothing to suggest that the applicant ever held a Subclass 771 Transit visa.

12. The Tribunal has found that the last substantive visa held by the applicant was a Visitor visa which expired on 1 August 2019. The Tribunal finds that this is the ‘relevant day’ within the meaning of subclause 2001(2). As the applicant made the application in 2021, the Tribunal is not satisfied the application was made within 12 months after the relevant day. the Tribunal finds that the applicant does not meet Item 3002 for and cl. 837.212(b).

13. With respect to Subclass 802, there is no evidence before the Tribunal that the visa applicant is the child of the sponsor, either adopted or biological. The application form indicates that he is the sibling of the sponsor, although the Tribunal notes that the applicant’s sister has been given guardianship. This evidence does not establish that the applicant is the child of the sponsor. He is not the biological child of the sponsor and there is no evidence of adoption. The Tribunal considers that guardianship arrangements are not sufficient to establish a parent – child relationship between the applicant and the sponsor.  The Tribunal is not satisfied the applicant is a dependent child of the sponsor. The Tribunal is not satisfied she meets cl 802.212.

14. However, even if there was a parent- child relationship between the visa applicant and the sponsor, there is nothing before the Tribunal to indicate that the applicant became a dependent child of the sponsor since last applying for a substantive visa. The Tribunal is not satisfied the visa applicant meets cl. 802.211.

15. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant claims that his father is unknown and his mother passed away when he was young and he was brought up by his sister (the sponsor) since the age of 4. The sister is now a permanent resident of Australia. She has been granted guardianship of the applicant by the court in the Philippines. The applicant refers to lack of support in the Philippines and the lengthy processing times for an offshore visa application.

16. The Tribunal accepts that  the sponsor has been supporting the applicant since his young age. The Tribunal accepts that the applicant has little or no support in his home country. Th Tribunal acknowledges evidence of the applicant’s settlement in Australia, including letters of support from his school and church.

17. The Tribunal accepts that in these circumstances, there are strong compassionate circumstances that may warrant ministerial intervention. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    Conclusion

18. For these reasons, the criteria for the grant of a Subclass 837 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 802).

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Kira Raif
    Senior Member