Shamuyarira (Migration)
[2021] AATA 2527
•19 May 2021
Shamuyarira (Migration) [2021] AATA 2527 (19 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Ms Caroline Shamuyarira
VISA APPLICANT: Mr Takudzwa Shamuyarira
CASE NUMBER: 1910459
HOME AFFAIRS REFERENCE(S): F2016/075808
MEMBER:John Longo
DATE:19 May 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
· cl 117.211 of Schedule 2 to the Regulations; and
· cl 117.221 of Schedule 2 to the Regulations.
Statement made on 19 May 2021 at 9:03am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa - Subclass 117 (Orphan Relative) – orphan relative of an Australian relative at time of application – brother of the sponsor – mother’s death – father’s medical conditions – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.211, 117.221, 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 27 February 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant applied for the visa on 24 June 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.
3. The visa applicant is a national of Zimbabwe born in October 2001. The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was an orphan relative of her Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.
4. The review applicant appeared before the Tribunal on 9 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Takudzwa Shamuyarira, who is the visa applicant. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
6. The issue in the present case is whether the applicant meets the definition of orphan relative.
Is the visa applicant an orphan relative of an Australian relative?
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.
‘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 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): reg 1.03. In the present case, the review applicant, Ms Caroline Shamuyarira, is the relevant Australian relative.
9. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and, even though the visa applicant has turned 18, continues to be met at the time of decision.
Age – reg 1.14(a)(i)
10. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicant was born in Zimbabwe on 28 October 2001. A copy of his birth certificate and passport which confirm his place and date of birth were provided to the Department. The application was made on 24 June 2016. The Tribunal is satisfied that the visa applicant had not turned 18 at the time of the application. Accordingly, reg 1.14(a)(i) was met at the time of application and, even though the visa applicant has turned 18, continues to be met at the time of decision.
Spouse or de facto partner – reg 1.14(a)(ii)
11. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The application and sponsorship form provided to the Department state that the visa applicant was never married or in a de facto relationship. The Tribunal is satisfied that the visa applicant has never married or been in a de facto relationship. 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)
12. Regulation 1.14(a)(iii) requires the visa 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.
13. The visa applicant is the brother of the sponsor (the review applicant), who became an Australian citizen on 11 August 2009. The Tribunal is satisfied that the visa applicant is a relative of an Australian citizen, the review applicant. 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)
14. Regulation 1.14(b) requires that the visa 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.
15. With respect to his parents, the visa applicant claims his mother has died. He presented documentary evidence relating to his mother’s death which the delegate accepted. The Tribunal also accepts that the visa applicant’s mother died on 17 January 2009. With respect to his father, the visa applicant provided evidence that his father has been diagnosed with hypertension, diabetes, chronic kidney disease and diabetic retinopathy and is incapacitated as a result and cannot care for him.
16. The review applicant provided a number of medical reports to the Tribunal regarding his father’s health conditions. The Tribunal notes that the visa applicant’s father was first diagnosed with type 2 diabetes in 2014 when visiting Australia by Dr Frank at Tristar Medical Group in Sebastopol. His hypertension was diagnosed, according to other medical reports provided, in 1970. His chronic kidney disease is due to the hypertension and diabetes, which has been gradually declining due to the poorly controlled diabetes.
17. The representative’s submissions to the Tribunal on 28 April 2021 outline the visa applicant’s circumstances. It states that the visa applicant’s father was diagnosed with the conditions of hypertension, diabetes, chronic kidney disease and retinopathy. The father’s health has deteriorated since the diagnosis of diabetes in 2014, and since the death of his mother the visa applicant has been neglected by his father. The submissions state that this neglect is due to the father being unable to provide care to his son.
18. The most recent report by Dr Mawere, dated 24 April 2021, states that the father has developed glaucoma, retinopathy and impaired vision. The report further stated that the chronic illness and social circumstances, which have been compounded by the death of his wife, have made him depressed. It states that his symptoms include tiredness, poor sleep, loss of appetite, anhedonia, and negative thoughts with poor cognition with loss of memory. The report states that the condition cannot be managed using medications due to other co‑morbidities and the high risk of drug interactions and side effects. The report states that he is significantly incapacitated and dependent on others for activities of daily living.
19. The review applicant told the Tribunal that her father’s mobility has been affected and he uses a walking stick as well as assistance to move around. She stated that his carers use a wheelbarrow, as they do not have a wheelchair, to move him around. She stated that her father does not do any cooking and requires assistance with taking his medication and his personal hygiene such as showering and dressing.
20. The Tribunal found the review applicant’s oral evidence to be truthful and persuasive and accepts that evidence. The Tribunal acknowledges the review applicant’s evidence that the child’s father has both physical and mental health conditions which affect his ability to care for himself. She stated that the visa applicant has not lived with his father since 2016 and is currently living alone in Chegutu completing his high school A levels. The Tribunal accepts this evidence. The Tribunal accepts that the sponsor is willing to take care of the child and believes the child would be better off with her. The Tribunal also notes that the review applicant has been providing funds for the visa applicant’s schooling, food and accommodation and is also providing emotional support.
21. The Tribunal accepts the review applicant’s evidence. The Tribunal has formed the view that due to the visa applicant’s age at the time of the application and at present, his physical needs may not have been significant. The term ‘cared for’ is not defined in the Regulations. However, the term ‘cared for’, ‘in the Tribunal’s opinion, is not limited to physical care. It also includes emotional, psychological, financial and other forms of care that a parent may normally provide. In this case, the Tribunal accepts that the visa applicant’s father suffers from hypertension, diabetes, chronic kidney disease and diabetic retinopathy and depression, and that as a consequence of these medical conditions he is unable to meet these responsibilities in relation to the visa applicant. The Tribunal accepts the review applicant’s evidence that the visa applicant has substantially relied on her for such support and not on his father, and that is because of the father’s incapacity to provide such care and support due to his physical and mental condition.
22. The Tribunal is satisfied that the visa applicant’s father has a condition affecting his physical and mental health that renders him permanently incapacitated. The Tribunal is satisfied that the visa applicant cannot be cared for by his father because he is permanently incapacitated and by his mother because she is dead. The Tribunal is satisfied the visa applicant meets reg 1.14(b).
23. 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)
24. 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 visa applicant. As stated by the review applicant, the visa applicant is residing on his own in a shack in a shanty part of the town of Chegutu to allow him to finish his secondary schooling. He has no support and there is no proper sanitation. He is residing here to enable him to finish his schooling, as there is no schools in the area where his father lives.
25. There is evidence before the Tribunal that the review applicant has been providing financial support to the visa applicant for a number of years. She is willing to continue to provide such support in the future. The Tribunal has determined that there are no compelling reasons to believe that the grant of a visa would not be in the best interests of the visa applicant both at the time of application and at the time of decision. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.
Conclusion
26. Given the findings above, cl 117.211 is met. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, but only because the visa applicant has turned 18. It follows that cl 117.221 is met.
27. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
28. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations; and
·cl 117.221 of Schedule 2 to the Regulations.
John Longo
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.
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