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

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).
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.
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.
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’.
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.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the definition of ‘orphan relative’.
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?
Clause 837.213 requires that at the time of visa application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ruangsri (Migration)

Details

AGLC: Ruangsri (Migration) [2023] AATA 1674
Case: [2023] AATA 1674
Decision Date: 30 May 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, specifically a Subclass 837 (Orphan Relative) visa. The applicant sought review of a decision concerning their eligibility for this visa. The Tribunal, constituted by Senior Member James Lambie, was tasked with determining whether the applicant met the definition of an "orphan relative" as defined by the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant qualified as an "orphan relative" under regulation 1.14 of the Migration Regulations 1994. This required assessing whether the applicant had not turned 18, did not have a spouse or de facto partner, was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also had to consider whether there was any compelling reason to believe that granting the visa would not be in the applicant's best interests.

The Tribunal's reasoning focused on the definition of an "orphan relative." It found that the applicant, who was 16 at the time of application and had no spouse or de facto partner, met the age and relationship criteria. The applicant's father was deceased, and the applicant's mother suffered from a substance abuse disorder, which the Tribunal considered to constitute permanent incapacity for the purposes of regulation 1.14(b). The Tribunal noted that while the applicant met the criteria at the time of application, this was not the case at the time of the decision due to the applicant having turned 18.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant be considered to meet the criteria under clause 837.213 and clause 837.221 of Schedule 2 to the Regulations, indicating that the assessment of the "orphan relative" definition had been satisfied for the purpose of further consideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the definition of ‘orphan relative’. 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? 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. ‘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. 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) 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) 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)

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.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.James LambieSenior MemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14 Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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