Singh (Migration) - [2023] AATA 3456

Singh (Migration) [2023] AATA 3456 (12 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Sandeep Singh
VISA APPLICANT:  Mr Yuvraj Singh
REPRESENTATIVE:  Mr Uday Kumar Mishra (MARN: 0215810)
CASE NUMBER:  1927479
HOME AFFAIRS REFERENCE(S):          M17/1062
OSF2019/028959
MEMBER:David Crawshay
DATE:12 October 2023
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 12 October 2023 at 12:28pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 177 (Orphan Relative) – cannot be cared for by either parent because of death, permanent incapacity or unknown whereabouts – applicant the nephew of review applicant – father dead, mother remarried and cared for by father’s parents, with no further contact with mother – review applicant’s attempts to locate – expression of unwillingness should not be considered incapacity – applicant adopted by review applicant and wife – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cls 117.111, 117.211(a)
CASE
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 26 July 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).
The visa applicant applied for the visa on 7 April 2017. 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.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.117.211, which relevantly requires a visa applicant to be an orphan relative of an Australian relative. “Orphan relative” is defined in r.1.14 of the Regulations which will be reproduced in full below. A visa applicant satisfies the definition of “orphan relative” if it can be shown that he or she cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.
The delegate refused to grant the visa because the visa applicant did not meet cl.117.211 of Schedule 2 to the Regulations. While the delegate was satisfied that the visa applicant’s father had died, she was not satisfied that the visa applicant’s mother was of unknown whereabouts as claimed or was incapacitated.
The delegate also considered the visa applicant’s claims against the criteria for other visas in Class AH. As regards the criteria for a Subclass 101 (Child) visa, the delegate found that cl.101.211 was not met as…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2023] AATA 3456
Case: [2023] AATA 3456
Decision Date: 12 October 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 177 (Orphan Relative), before the Tribunal. The review applicant, an Australian citizen, sought the visa for the applicant, who is his nephew. The core dispute revolved around whether the visa applicant qualified as an "orphan relative" under the Migration Regulations 1994, specifically whether he could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts.

The Tribunal was required to determine if the visa applicant was an orphan relative of an Australian relative at the time of application and continued to be so at the time of the decision, or if he no longer met that criterion only because he had turned 18. This involved assessing whether the applicant met the definitions of "orphan relative" and "relative" as defined in the Regulations, and crucially, whether his mother was permanently incapacitated and unable to care for him. The Tribunal also had to consider whether granting the visa would be in the best interests of the applicant.

The Tribunal reasoned that while the applicant's father was deceased, the status of his mother required careful consideration of cultural norms. Evidence suggested the applicant's mother, following her husband's death, had returned to her parental home and remarried, leaving the applicant behind. The Tribunal accepted that cultural circumstances, including the practice of levirate marriage and the perceived need for a widow to be free of children before remarrying, rendered the mother permanently incapacitated to care for the child, rather than simply unwilling. This interpretation was informed by the principle that a parent should not be considered incapacitated solely due to an expressed unwillingness to provide care, but rather by the broader cultural context.

Consequently, the Tribunal found that the visa applicant met the criteria for being an orphan relative and that there was no compelling reason to believe that granting the visa would not be in his best interests. The Tribunal remitted the application for reconsideration, directing that the visa applicant met the specified criteria for the Subclass 117 (Orphan Relative) visa.

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 issues in the present case are whether the visa applicant was an orphan relative at the time of application and continues to be an orphan relative at the time of this decision.Was 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 visa 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 r.1.14 of the Regulations. 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, who is an Australian citizen, is the relevant Australian relative.Age – r.1.14(a)(i) Regulation 1.14(a)(i) requires that an individual visa applicant has not turned 18 at the time of application. According to documents including the visa applicant’s passport and his birth certificate, he was born in October 2003. He had therefore not turned 18 at the time of application. Accordingly, r.1.14(a)(i) was met at the time of application.Spouse or de facto partner – r.1.14(a)(ii) Regulation 1.14(a)(ii) requires that an individual visa applicant does not have a spouse or de facto partner. There is no information in front of the Tribunal to show that the visa applicant has ever had a spouse or de facto partner. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.Relative – r.1.14(a)(iii) Regulation 1.14(a)(iii) requires a visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. “Australian permanent resident” means a non-citizen who is usually resident in Australia and who holds a permanent visa. The review applicant claims that the visa applicant is the son of his brother. The visa applicant is therefore claimed to be his nephew. “Nephew” is included in the definition of “relative” in r.1.03. A birth certificate in respect of the visa applicant dated 31 August 2007 lists “Lakhbir Singh” as the father of the visa applicant and “Jaswant Singh” as his grandfather. An “APL Card Form D-III” (known as “ration card”) issued 20 April 2012 lists “Jaswant Singh” as the review applicant’s father. Similarly, a marriage certificate dated 12 November 2009 lists “Jaswant Singh” as the review applicant’s father.

Decision

Reasons for decision

More than one of the sources consulted by the Tribunal either mentions the practice of levirate marriage (where a widow marries the brother of her late husband) as being extant or implies that it is. The aforementioned report in Economic and Political Weekly stated that levirate marriage is practised among some castes. Although again this report was from 1995, it had been reported in an online newspaper that it was as recently as 2017 that the Defence ministry removed a rule that prohibited the payment of a monetary allowance to a widow of a gallantry awardee if she remarried someone who was not the brother of her late husband.[8] This rule was originally contained in a ministry note in 1972 and had remained in the newer 1995 version. The implication of this article is that the practice was so accepted and recently-practised that government entities had it incorporated into their procedures up until six years ago.[8] ‘Army widow need not marry brother-in-law for pension’, Deccan Chronicle (22 November 2017), >The significance of this information becomes apparent when we consider that the review applicant gave evidence at the initial hearing that the visa applicant’s mother had asked him to engage in a levirate marriage with her following the death of the visa applicant’s father. The Tribunal accepts that, if true, this evidence would lend credence to the review applicant’s claim that the visa applicant’s mother adhered to “traditional” gender roles and norms. It accepts that, if true, this “traditional” outlook could extend to practices around remarriage – including the practice of levirate marriage and the perceived need for a widow to be free of children before remarrying.There is very little evidence concerning the personal details of the visa applicant’s mother that the Tribunal could consider when assessing if she adhered to “traditional” norms. However, it accepts based on information including information contained in a court order in the visa applicant’s guardianship matter dated 11 January 2012 that the visa applicant’s mother left the matrimonial home upon the death of the visa applicant’s father and went to her parental house, and that she remarried thereafter. It accepts that this behaviour indicates that she had chosen to adhere to a “traditional” way of living and eschewed a more “independent” life – to use the words of the review applicant. It accepts that this traditional way of living likely extended to remarriage practices – including levirate marriage on the one hand and the perceived need to give up her child before remarrying on the other.The Tribunal has considered the above findings in the light of Department policy, which is in turn based largely on the decision of Merkel J in Nguyen v MIMA. It agrees that a parent should not be considered incapacitated simply because he or she has expressed an unwillingness to provide care. However, it finds that the cultural circumstances facing the visa applicant’s mother as a dependent woman who adhered to a “traditional” life mean that she was incapacitated to care for the visa applicant following the death of the visa applicant’s father. At that point, she found herself as a widow with child, a status that was problematic for her. It finds that she then attempted to engage in a levirate marriage with the review applicant and that, failing that, she returned to her parental home without the visa applicant to be married to another person. It finds that she has then cut herself off from the visa applicant and largely avoided contact with the visa applicant’s family. The Tribunal accepts that it was these cultural circumstances, strongly adhered by the visa applicant’s mother and her family, and not a mere unwillingness to provide care, that resulted in her abnegating jer responsibility for the care of the visa applicant.Based on the information in front of it and given the above findings, the Tribunal finds that the visa applicant’s mother was permanently incapacitated at the time of application and was therefore unable to care for the visa applicant.The Tribunal accepts that the visa applicant meets r.1.14(b) at the time of application. It accepts that he meets that subregulation at the time of this decision.Best interests – r.1.14(c)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 applicants. There is no clear evidence that the grant of the visa would not be in the best interests of the visa applicants, and the information in front of the Tribunal is that the review applicant has been supporting the visa applicant.The Tribunal finds that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicant. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.CONCLUSIONBased on the above findings, the visa applicant meets cl.117.211(a). As cl.117.211(a) is an alternative requirement under cl.117.211, that subclause is met in its entirety.The Tribunal finds that the visa applicant meets cl.117.221(b) as he does not continue to satisfy cl.117.211 but only because he has turned 18. Clause 117.221 (b) is an alternative requirement under cl.117.221, meaning that that subclause is met in its entirety.Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISIONThe 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.David CrawshayMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan 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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