Ruangsri (Migration)

[2023] AATA 1674

Ruangsri (Migration) [2023] AATA 1674 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suttipan Ruangsri

REPRESENTATIVE:  Mr Nathan Willis (MARN: 1467692)

CASE NUMBER:  2005776

HOME AFFAIRS REFERENCE(S):          CLF2019/11159

MEMBER:James Lambie

DATE:30 May 2023

PLACE OF DECISION:  Brisbane

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; and

·cl 837.221 of Schedule 2 to the Regulations.

Statement made on 30 May 2023 at 12:33pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 837 (Orphan Relative) – orphan relative – mother’s substance abuse disorder – permanent incapacity – best interests of the applicant – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 837111, 837.213, 837.221; rr 1.03, 1.14

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 Home Affairs on 18 March 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 March 2019. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 837.221.

4. The delegate refused to grant the visa because the applicant did not meet cl 837.221 of Schedule 2 to the Regulations because the applicant did not meet the definition of ‘orphan relative’.

5. The applicant appeared before the Tribunal on 30 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the definition of ‘orphan relative’.

9. The material presented by the applicant in support of his application comprises:

   ·The representative’s written submissions, dated 10 February 2023;

   ·The applicant’s father’s death certificate in Thai original, dated 13 December 2016, with English translation;

   ·Statutory declaration of Jessica New Ruangsri, dated 14 August 2017;

   ·Statutory declaration of Jeffrey Marriott, dated 15 August 2017;

   ·Report of Dr Sheila Gray, mental health social worker and family therapist, dated 28 February 2019; and

   ·Report of Damien McInerney, clinical psychologist, dated 11 August 2017.

   Is the applicant an orphan relative of an Australian relative?

10. 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.

11. ‘Orphan relative’ is defined in reg 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): reg 1.03. In the present case, the applicant’s sister is the relevant Australian relative.

12. For the reasons below, the applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the applicant is not 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 does not continue to be met at the time of decision.

    Age – reg 1.14(a)(i)

13. Regulation 1.14(a)(i) requires that the applicant has not turned 18. The application was lodged on 11 March 2019. The applicant’s passport, included with his application gives his date of birth as 26 September 2002. He was therefore 16 years of age when he lodged the application. Accordingly reg 1.14(a)(i) was met at the time of application and does not continue to be met at the time of decision.

    Spouse or de facto partner – reg 1.14(a)(ii)

14. Regulation 1.14(a)(ii) requires that the applicant does not have a spouse or de facto partner. There is no suggestion that the applicant had or has a spouse or de facto partner.  Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

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

16. It is accepted that the sponsor is the paternal half-sister of the applicant and is an Australian citizen: Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    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. 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.

18. The applicant’s evidence is that his mother has a long standing and apparently intractable substance abuse disorder such that she was and has been incapacitated in respect of the provision of care to the applicant.

19. PAM 3 at 9.1, “Assessing permanent incapacity” provides:

    Claims under regulation 1.14(b) that either one of both of the child’s parents are permanently incapacitated on the basis of physical or mental impairment should be supported by (preferably) a medical report or (otherwise) a background report from the child’s social worker.

    The report should describe:

    ·the nature of the parent’s disability and when it was diagnosed and

    ·the nature and degree , if any, of the incapacity caused by the disability and

    ·whether medical opinion supports a view that the incapacity if permanent (and, if so, why) and

    ·available treatment (if any) for the disability and

    ·prognosis.

20. PAM 3 at 9.2, “meaning of incapacitated” notes that

    policy does not intend that incapacity be limited to situations of physical or mental impairment although this will generally be the case.

21. Dr Gray’s report provides a comprehensive case history informed by interviews with the applicant, Mr Marriott and Ms Ruangsri. It finds, relevantly:

    It is apparent from the reported history that [the applicant’s mother’s] drug dependency was in existence from approximately 2004 …

    In considering the severity of her disability reflected by her reported substance abuse disorder, it is important to know if [she] has made any attempts to address her reported drug dependency.  There are no reported attempts or knowledge of her successfully attempting to discontinue her drug use.  A pathological continuing pattern of her continued drug use therefore can be inferred.  Such a pattern … would have jeopardised her lifestyle in what can be assume as continuing preoccupation to obtain the drugs, using them and recovering from their use…

    [The applicant’s] mother’s circumstances appear to amount to incapacity, and that this incapacity is permanent.  It is permanent in the sense that, in the absence of contradictory information, [she] has not engaged in any treatment for her drug dependency or attending mental health problems which would have been promoted by victimisation… Any trajectory for complete recovery … would therefore require her to establish and maintain a sustained abstinence from drugs for two years.

22. I am satisfied that Dr Gray’s report meets the recommended parameters of PAM 3 extracted above. I am further satisfied that the statutory declarations of Mr Marriott and Ms Ruangsri are illustrative of Dr Gray’s assessments and observations.

23. In Nguyen v MIMA (above), Merkel J stated:

    I agree that a refusal to care, abandonment of care or an unwilling to care do not amount to permanent incapacity.  However, that conclusion does not have the consequence that permanent incapacity cannot result in a refusal to care, unwillingness to care or abandonment of care.

    The Tribunal has had regard to other Tribunal decisions in which severe drug addiction[1] and alcoholism[2] have been accepted as the basis of findings of permanent incapacity to care.

    [1] Bucha (Migration) [2018] AATA 2060; Chen, Xue Ling [2003] MRTA 8215

    [2] N04/02428 [2006] MRTA 2

24. It was submitted on behalf of the applicant that it would be unreasonable to require further evidence of the mother’s disability on the basis that this would rely on her own willingness to seek therapy and revive contact with the applicant. I accept that the history of the matter, in which the mother has been uncommunicative or uncontactable for most of the applicant’s life suggests that any such any attempt would be unsuccessful. This finding is relevant to PAM 3 at 9.6, “the meaning of permanently”:

    Under policy, it is open to officers to decide that a parent is permanently incapacitated having regard to whether the incapacity

    ·has existed for the greater part of the child’s minority and

    ·may reasonably be expected to exist for a greater part of the remaining years of the child’s minority (that is, rather than for the rest of the child’s life).

    I am satisfied on the evidence that the mother’s condition has lasted for by far the greater part of the applicant’s minority.

25. Having regard to all of the evidence, I am satisfied that the applicant’s mother has a long-standing an intractable substance abuse disorder by which she was permanently incapacitated. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – reg 1.14(c)

26. 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 evidence, particularly the report of Damien McInerney, which I accept, is strongly indicative that the grant of the visa would be in the best interests of the applicant. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

    Conclusion on time of application criterion:

27. Given the findings above, cl 837.213 is met.

    Conclusion on time of decision criterion:

28. 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.

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

    DECISION

30. 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; and

    ·cl 837.221 of Schedule 2 to the Regulations.

    James Lambie
    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.