PRASAD (Migration)

[2018] AATA 1937

PRASAD (Migration) [2018] AATA 1937 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Usha Devi Prasad

VISA APPLICANT:  Mr Mashnil Prasad Maharaj

CASE NUMBER:  1721806

DIBP REFERENCE(S):  OSF2014/056178

MEMBER:K. Chapman

DATE:8 May 2018

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 08 May 2018 at 12:53pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Visa applicant over 18 at the time of the application – Review applicant was unable to adopt the visa applicant in Fiji – Ministerial intervention referral sought – Visa applicant’s sister obtained a Subclass 117 visa – No referral by the Tribunal to the Minister – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, rr 1.03, 1.14 Schedule 2 cls 117.111, 117.211, 117.221

CASES
EC v MIMIA [2004] FCA 978

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 3 August 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicant, who is a citizen of Fiji, applied for the visa on 21 February 2014. That visa application was sponsored by the review applicant. 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 criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). Relevantly to this case, they include cl.117.211(a) which requires the visa applicant to be an orphan relative, as defined in r.1.14, at the time of the visa application. This definition requires the visa applicant to, inter alia, be under 18 years of age at that time.

4. The delegate refused to grant the visa because the visa applicant did not meet cl.117.211(a) of Schedule 2 to the Regulations because he was 20 years of age at the time of application and accordingly was not an orphan relative of the review applicant at that time.

5. The review applicant appeared before the Tribunal on 4 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband. The review applicant was represented in relation to the review by her registered migration agent. During the initial portion of the review hearing, the Tribunal clarified the identity of the review applicant to be Mrs Usha Devi Prasad (the aunt of the visa applicant) and the review proceeded on that basis.  

6. 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?

7. 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.

8. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to this decision. 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. In the present case, Mrs Usha Devi Prasad is the relevant Australian relative.

9. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not 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.

   Age – r.1.14(a)(i)

10. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. It is not in dispute that the visa applicant was 20 years of age at the time of application, with the review applicant confirming this in her oral evidence. Accordingly r.1.14(a)(i) was not met at the time of application and does not continue to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

11. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. 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.

12. The review applicant confirmed to the Tribunal that despite attempting to legally adopt the visa applicant in Fiji, she was unsuccessful in doing so. Accordingly, cl.117.211(b) is not met, and does not continue to be met at the time of decision. Given the aforementioned findings, cl.117.211 is not met. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211 and it follows that cl.117.221 is not met.

13. For these reasons, 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. For completeness, the Tribunal finds that the visa applicant does not satisfy the requirements for either a Child Subclass 101 or an Adoption Subclass 102 visa as at the time of application he was over the age of 18 years, he was not formally adopted by the review applicant, and he was not incapacitated for work due to the total or partial loss of his bodily or mental functions.

    CONSIDERATION OF MINISTERIAL INTERVENTION REQUEST

14. The review applicant has requested the Tribunal to refer this case to the Department for consideration by the Minister pursuant to s.351 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to them, if the Minister thinks that it is in the public interest to do so. It is submitted that as the sister of the visa applicant obtained a Subclass 117 visa, being 17 years old at the time of application, the visa applicant himself should be allowed to join her in Australia. The visa applicant’s sister is now a student residing in Australia and is 21 years of age. The visa applicant himself is now aged 24 years and is studying plumbing at Fiji National University. Both the review applicant and her husband supported their nephew and niece in Fiji since their father died, with their mother not being involved in their lives. The central contention to the request for Ministerial Intervention is that the visa applicant and his sister should be reunited in Australia. Further, the review applicant and her husband have no children of their own and wish to look after both their nephew and niece together in Australia.

15. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more unique or exceptional circumstances. Departmental policy concerning Ministerial Intervention notes as a relevant factor, strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit and considerations relating to an Australian citizen’s age, health and psychological state.

16. The Tribunal has considered the review applicant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), however has decided not to refer the matter for Ministerial Intervention. The evidence before the Tribunal suggests that the 24 year old visa applicant is doing nicely in his studies in Fiji and is well supported by the review applicant and her husband. Whilst the Tribunal sympathises with the situation of the visa applicant, and accepts that it is upsetting for the family unit to have the adult siblings separated, it observes this is not an uncommon situation in this visa caseload.

17. The Tribunal notes that the review applicant can still make a request directly to the Minister should she wish to do so.

    DECISION

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

    K. Chapman
    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.