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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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 the visa applicant was not the natural child or stepchild of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen, and was not adopted by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen but later acquired one of those entitlements. In relation to the criteria for a Subclass 102 (Adoption) visa, the delegate found that cl.102.211 was not met as neither the review applicant nor his wife (as adoptive parents) was living outside of Australia for the 12 months prior to making the visa application.

6. The review applicant appeared before the Tribunal on 11 July 2023 to give evidence and present arguments (initial hearing). For reasons that are explained below, it became necessary to convene a further hearing (resumed hearing) in which the Tribunal heard evidence from the review applicant and the visa applicant. The Tribunal hearings were conducted with the assistance of interpreters in the Punjabi and English languages. The review 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 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?

9. 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.

10. “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)

11. 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)

12. 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)

13. 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.

14. 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.

15. Based on this information, the Tribunal accepts that Lakhbir Singh is the visa applicant’s father. It further accepts that Jaswant Singh is the father of the review applicant and of Lakhbir Singh. It accepts that the visa applicant is the review applicant’s nephew and is therefore his relative.

16. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

17. 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.

18. In the delegate’s decision, it was found that the visa applicant’s father, Mr Lakhbir Singh is dead. Having considered information such as a death certificate from the Health & Family Welfare Department of the Government of Punjab dated 24 January 2007 (folio 63 of Department file), the Tribunal accepts that Mr Lakhbir Singh died in February 2007. Moreover, based on a birth certificate from the Municipal Corporation Amritsar dated 31 August 2007, it accepts that the visa applicant is the son of Mr Lakhbir Singh. Therefore, the Tribunal accepts that the visa applicant’s father died in February 2007.

19. The issue is whether the visa applicant’s mother had died, was of unknown whereabouts or was permanently incapacitated at the time of application. In the delegate’s decision, it was found that the visa applicant’s mother, Ms Manpreet Kaur, was not dead, permanently incapacitated or of unknown whereabouts. In coming to this finding, the delegate found that while she had shown an unwillingness to provide care for the visa applicant as evidenced through her remarrying, the visa applicant being placed in the care of his paternal grandparents and his eventual adoption by the review applicant and the review applicant’s wife, this could not be considered as incapacity. The delegate had regard to Department policy on “incapacity”, which relevantly stated as follows:

    A parent's incapacity must be related to their ability to care for the child. A physical or mental impairment or strong cultural factors may not render them incapable of caring for the child. A parent should not be considered incapacitated simply because they have expressed an unwillingness to provide care for the child.

20. The delegate also found that the visa applicant’s mother was not of unknown whereabouts, noting that her whereabouts were known at the time that guardianship of the visa applicant was given over to his grandparents in 2012

21. The Tribunal has considered documents on the Department and Tribunal files, including:

    ·an undated letter of support from the review applicant that was submitted in January 2018 in response to a Department letter seeking comment or response;

    ·a court order and decision in the Guardian case number 69/2009 dated 11 January 2012;

    ·an affidavit of the visa applicant’s grandparents, Mr Jaswant Singh and Ms Manjeet Singh, dated 13 December 2017;

    ·a submissions letter from the visa applicant’s representative dated 31 March 2017;

    ·a letter from Primroses English High School dated 4 July 2023; and

    ·a letter from Naresh Pal Singh Mannan who represented the visa applicant’s grandparents in the guardianship case, dated 4 July 2023.

22. The submissions letter is brief, and states that the review applicant adopted the visa applicant after the visa applicant’s father died in January 2007 and his mother remarried. As above, the Tribunal accepts that the visa applicant’s father died. Furthermore, it accepts based on the evidence that his mother remarried.

23. The undated letter from the review applicant relevantly states that after the visa applicant’s father died in January 2007 and his mother left the matrimonial house and went to her parents’ house, leaving the visa applicant with his paternal grandparents, Mr Jaswant Singh and Ms Manjeet Kaur. The Tribunal accepts that these events occurred.

24. The review applicant’s letter goes on to say that the visa applicant’s paternal grandparents filed for guardianship of him when they discovered that his mother had remarried. Based on evidence including the court order and decision in the Guardian case, the Tribunal accepts the visa applicant’s paternal grandparents took guardianship over him.

25. The review applicant’s letter states that the visa applicant’s mother “have moved on because she never bothered to see her son Yuvraj Singh till date … Back home in India our home address and landline phone number is same from last fifteen years but she never visited and never ever called [errors in original].” This is similar in content to what was written in the affidavit of the visa applicant’s grandparents. In that document, the visa applicant’s grandparents stated that the visa applicant’s mother “never came to see her son. We tried many times to contact her but she was not ready to meet us.”

26. Moreover, the review applicant’s letter states that after “adopting” the visa applicant, the review applicant had applied for various legal documents in respect of the visa applicant and that no objections were raised by his mother. In a similar way, the affidavit of the visa applicant’s grandparents stated that the visa applicant’s mother failed to appear in court in the guardianship case despite being summoned.

27. The review applicant’s letter states that he had visited India four to five times since coming to Australia and had tried to locate the visa applicant’s mother during those visits using the address given by the Punjabi police and Court but was unable to do so.

28. The letter from Naresh Pal Singh Mannan dated 4 July 2023 details the steps that were carried out to effect service of the visa applicant’s mother – namely, publication in the Daily Ajit Newspaper and then through “munadi”. The Tribunal understands through open-source documents that publication in newspapers is exercised frequently in cases where a party cannot be served personally.[1] Its understanding of munadi is less developed, although it appears from sources such as posts from a lawyers’ online forum and from the review applicant and his representative at the initial hearing that it is a relatively primitive form of service whereby a chief or other specified person from a party’s village is served in the presence of witnesses after a drum is beaten to attract attention.[2]

    [1] High Court of Punjab and Haryana, “High Court Rules”, left_menu/Rules_orders/high_court_rules/vol-iv-pdf/Volume%20IV,%20Chapter%207%20Part%20B. pdf.

    [2] Lawyers Club India, “Service of summons by munadi and affixation”, com/forum/service-of-summons-by-munadi-and-affixation-223963.asp.

29. A hand-written statement of unknown date from a person who purported to be the visa applicant’s neighbour, Mr Tarsem Singh, relevantly states as follows:

    That I am verifying that after the death of his biological father we have not seen his biological mother at their in-laws house.

30. An affidavit from the visa applicant dated 29 July 2023 relevantly stated as follows:

    I have not seen my biological mother after my biological father’s death dated 21.01.2007 and she did not come to see me. She went to her parents [sic] house after the death of my biological father on 21.01.2008. I can’t recognize her. I don’t know anything about her. My grand parents and my adopted parents have taken care of me.

31. Finally, the letter from Primroses English High School states that no one else had ever inquired about the visa applicant except for his guardians (i.e. his grandparents)

32. The Tribunal accepts based on this information and based on the fact that the visa applicant’s mother was proceeded against ex-parte that she was not able to be served. However, it is not satisfied based on this information alone that she has been of unknown whereabouts as there are other plausible reasons for this, including that she has been evading service by the court.

33. Indeed, in the affidavit, which was completed in December 2017, the visa applicant’s grandparents relevantly stated as follows:

    That Manpreet Kaur who is real Mother of Yuvraj Singh never came to see her son. We many times tried to contact her but she was not ready to meet us.

    That due to such circumstances, we filed Petition [illegible] 6, 7 & 8 of Guardians & Wards Act on 4.11.2009 for Guardianship of Yuvraj Singh …

    [paragraph numbers omitted]

34. At the initial hearing, the Tribunal put to the review applicant that this suggested that the visa applicant’s grandparents were able to contact the visa applicant’s mother on several occasions, albeit that she was unwilling to meet with them or the visa applicant. In response, the review applicant told it that the affidavit was written in 2017, but the guardianship matter was heard in 2012. He said that the affidavit was made in support of the visa applicant when his “file opened” in 2017. He said that he came to Australia in March 2007 and did not know what happened in India after that.

35. At this point, the review applicant’s representative suggested that these attempts at meeting with the visa applicant’s mother occurred before 2009. While the Tribunal accepted that this may have been the case and that the inability to be able to meet with the visa applicant’s mother led to the filing of petitions in the court in 2009, it nonetheless suggested to him and the review applicant that this information still may have shown that the visa applicant’s mother was able to be contacted but was not able to be served. The review applicant replied that even if the documents could not have been served on the visa applicant’s mother, she still could have come to the court at that time. He said that even if the visa applicant’s grandparents were able to make contact with the visa applicant’s mother, she still did not come to the court. He said that the visa applicant’s details were changed on his passport, Adhar card and ration card and there was no contact from his mother. He referred to the letter from the visa applicant’s school, wherein it was said that no one else had ever inquired about the visa applicant except for the visa applicant’s guardians (i.e. his grandparents).

36. The Tribunal asked the review applicant whether he had tried to locate the visa applicant’s mother during the times that he went back to India, said by him at the initial hearing to be six. He answered that he had not because he did not know where the court got her address from and whether she even lived there. He said that he feared he might breach privacy if he were to go there and did not know what kind of reaction he might get. At this point, the Tribunal put to him the contents of his undated letter wherein he stated that “I have visited India 4 to 5 times since i came to Australia. even I tried to find Manpreet kaur regarding Yuvraj Singh on the given address by the Punjab Police and Hon’ble court but I couldn’t find her [errors in original].” He replied that English was not his first language. He said that he tried to find out her address from other people based on her description.

37. The Tribunal has considered the information in front of it, including the testimony of the review applicant at the initial hearing, and the submissions made by the review applicant’s representative on his behalf. While it accepts that the visa applicant’s mother was unable to be served through various means, and while she has otherwise shown an extremely unfortunate unwillingness to be a part of the visa applicant’s life and upbringing, it is not satisfied that this equates to a finding that she was of unknown whereabouts. In coming to this finding, the Tribunal puts weight on the contents of the affidavit by the visa applicant’s grandparents and specifically the admission that they had been able to contact the visa applicant’s mother but that she was unwilling to meet with them or the visa applicant.

38. Moreover, the Tribunal has concerns about the efforts made by the review applicant to track down the visa applicant’s mother. Specifically, it is concerned that he did not attempt to locate her on any address given by entities such as the police or court, despite claiming to have done so in his undated letter. Furthermore, the method he purportedly used (i.e. seeking her address based on a physical description) is primitive at best and it is not at all clear that this would have yielded the result that he said he wanted. The Tribunal is not satisfied that the review applicant made any serious attempt at tracking down the visa applicant’s mother.

1. Based on the information in front of it, the Tribunal is not satisfied that the visa applicant’s mother was of unknown whereabouts at the time of application in April 2017.

2. The Tribunal now turns to the question of whether the visa applicant’s mother was incapacitated.

3. Prior to the resumed hearing, the Tribunal received a submission from the review applicant’s representative dated 7 August 2023. Within this submission, the representative submitted that the visa applicant’s mother was unable to care for him due to her marriage into another family and was therefore permanently incapacitated. The representative quoted extensively from the decision of Merkel J in Nguyen v MIMA. The point was not explicitly made but the implication of the submissions letter as divined by the Tribunal is that she would have been precluded or limited in her ability to remarry because she had a child of her previous marriage.

4. At the resumed hearing, the review applicant told the Tribunal that the visa applicant’s mother was “not highly-qualified” and did not have any skills. He said that she was a housewife and, when the visa applicant’s father died, she had two options – she could either live life as an independent woman or she could remarry – and she chose the second option. In response to a question from the Tribunal, the review applicant said that after the funeral of the visa applicant’s father, concerns about her wellbeing were raised, with her parents and uncle asking how she could survive alone.

5. At this stage, the Tribunal put to the review applicant information derived from a survey conducted by Pew Research in which it was found that Sikhs are least likely among the religious groups within India to hold “traditional” views towards gender roles.[3] It further reasoned that people living within larger cities, such as Amritsar, might hold even more egalitarian views. The review applicant responded that while Amritsar was a big district, the visa applicant’s mother belonged to a village. He said that things also depend on the individual family and their views. When asked about the practice of a brother stepping in to marry his sister-in-law (at the initial hearing, the review applicant said that she had asked him to marry her after the death of the visa applicant’s father – an offer which he rejected), he said that it occurs.

   [3] Jonathan Evans et al., “How Indians View Gender Roles in Families and Society”, Pew Research Center (2 March 2022), >

   The Tribunal has considered other information concerning the cultural norms and practices around women who are no longer married and the implications of remarriage on their children. The sources consulted are somewhat ambiguous on this point. For example, while the Rehat Maryada (a text that acts as a code of conduct and conventions for Sikhism) does not place any prohibition on a woman remarrying if she has living children, the Prem Sumarag (an anonymous work which “evok[es] a model of Sikh way of life and of Sikh society”)[4] indicates that a widow’s remarriage is not favoured while having children with her.[5]

   [4] ‘Prem Sumarag’, The Sikh Encyclopedia, n.d. accessed 17 August 2023, Manveet Sharma, ‘Position of Women as Depicted in Prem Sumarag’ (2021) 8(5) Journal of Emerging Technologies and Innovative Research 350: “A widow should not have sexual relation with other person if she happens to have her living children. If she commits such mistake then the society should boycott both of them socially and her children should not remain in her custody; she is advised to remarry in the prescribed manner.” [at 350]

6. The Tribunal has also considered the day-to-day practice and customs relating to remarriage among Sikhs and in the Punjab more generally. While several of the sources consulted state that widow remarriage is allowed (and was even celebrated at some times in the past), none provided any information on the effects of remarriage on the widow’s children in the Sikh community in India.

7. A report in Economic and Political Weekly from 1995 on widows in India, which focussed on Hindu and not Sikh women, relevantly stated as follows:

   Two stereotypes persist about widow remarriage in India. The first is that widow remarriage is "prohibited" in Hindu society. The second is that widow remarriage is widely practised. Reality lies somewhere between these two extreme views: only the upper castes prohibit remarriage; most other castes (except those emulating the upper castes) allow widow remarriage; some castes (in certain regions) practice leviratic unions (remarriage to the deceased husband's brother); but actual remarriage, outside of levirate, only takes place in special circumstances. The basic pattern in most communities is that most childless widows remarry, while most widowed mothers do not remarry.[6]

   [emphasis added]

   [6] Marty Chen and Jean Dreze, ‘Recent Research on Widows in India: Workshop and Conference Report’ (1995) 30(39) Economic and Political Weekly 2435, 2439, .org/stable/4403278?origin=JSTOR-pdf.

8. Furthermore, in a detailed study from 1967 on remarriage of Hindus and some Muslims in two districts in Northern India (one in Uttar Pradesh and one in the Punjab), the data indicated a strong correlation between the age of widows and the number of children on the one hand, and the prospects of remarriage on the other. It found that younger women with no children being significantly more likely to remarry.[7]

   [7] S.N. Agarwala, ‘Widow Remarriages in Some Rural Areas of Northern India’ (1967) 4(1) Demography 126, “Widow remarriages were found to be very common in the younger age groups … Again, nearly 80 per cent of the widows who did not have a child at the time of their widowhood were remarried; but only 30 per cent of those with one child and only 10 per cent of those with four children were remarried. This suggests that a very high percentage of young widows without any children is remarried, but very few of those above age 35 or with three or more children are remarried.” [at 134]

9. These sources must be treated with caution, as they are both more-than-20 years old (the latter being 56 years old) and are geared either solely or primarily towards Hindu widows. However, the Tribunal accepts that they help to form an historical context within which it is plausible that a Indian woman, although not necessarily a Sikh woman, would have felt pressure to give up responsibility of her children lest she be seen as undesirable for remarriage.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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)

16. 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.

17. 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.

    CONCLUSION

18. Based 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.

19. 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.

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

    DECISION

21. 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.

    David Crawshay
    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.