Rwambiwa (Migration)

[2017] AATA 2136

Rwambiwa (Migration) [2017] AATA 2136 (7 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Annah Rwambiwa

VISA APPLICANT:  Miss Anna Fadzai Nechironga

CASE NUMBER:  1620488

DIBP REFERENCE(S):  F2016/075638 OSF2016/075638

MEMBER:Moira Brophy

DATE:7 November 2017

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 07 November 2017 at 12:55pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) – Subclass 117 (Orphan relative) – Applicant aged over 18 years of age at time of application

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, r 1.14(a)(i), Schedule 2 cl 117.111, cl 117.211, cl 117.221

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant is an orphan relative.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 September 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

3. The visa applicant applied for the visa on 19 February 2016. 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.

4. 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 meet the provisions of Regulation 1.14(a)(i).

5. The delegate refused to grant the visa because the applicant did not meet cl.117.211(a) of Schedule 2 to the Regulations because she was not aged under 18 years of age at the time of the application.

6. The review applicant appeared before the Tribunal on 7 November 2017 to give evidence and present arguments.

7. 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?

8. 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.

9. ‘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. In the present case, the review applicant Mrs Annah Rwambiwa is the relevant Australian relative.

10. 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 continues to be not met at the time of decision.

    Age – r.1.14(a)(i)

11. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicant’s date of birth is declared on the application form and on the applicant’s passport. Based on this evidence the Tribunal finds the applicant’s date of birth is 23 October 1995. Accordingly the Tribunal finds the applicant turned 18 years of age on 23 October 2013. The application to be considered an orphan relative was made on 19 February 2016. The tribunal is satisfied the applicant was aged over 18 years of age at the time of application. Accordingly r.1.14(a)(i) was not met at the time of application and continues to be not met at the time of decision.

12. Since the Tribunal was satisfied a threshold issue was not met it did not consider the remaining criteria.

13. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. Since the Tribunal was satisfied a threshold issue was not met it did not consider the remaining criteria.

14. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

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

    Moira Brophy
    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.