SINGH (Migration)

SINGH (Migration) [2018] AATA 4117 (3 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr BALBINDER SINGH
VISA APPLICANTS:  Miss SUKHPREET SAINI
Miss MONIKA SAINI
Master PARMEET SAINI
CASE NUMBER:  1614354
DIBP REFERENCE(S):  2015/079183
MEMBER:Kate Millar
DATE:3 September 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 03 September 2018 at 2:30pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – definition of orphan relatives – mother’s death certificate – farmer’s migraine and alcoholic addiction – adverse information from site visit – school’s evidence – father’s medical certificate – inconsistent information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14, Schedule 2 cls 117.211, 117.221

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Singh is an Australian citizen. He wants his nieces Sukhpreet and Monika and his nephew Parmeet to come and live with him in Australia as he says their mother has passed away and their father is incapable of caring for them. Sukhpreet is currently 19 years old, Monika is 14 years old, and Parmeet is 12 years old. Mr Singh’s wife Ms Jasbir Kaur is the aunt of the children.
Sukhpreet, Monika and Parmeet applied for Child (Migrant) (Class AH) visas, and in particular Subclass 117 (Orphan Relative) visas on 26 October 2015. Their visa applications were refused by a delegate of the Minister for Home Affairs on 2 September 2016 under s.65 of the Migration Act 1958 (the Act).
The applications were refused as the delegate of the Minister was not satisfied the applicants met the definition of “orphan relatives” and in particular whether they could not be cared for by their father because he is permanently incapacitated. Mr Singh has applied for a review of this decision.
Mr Singh appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jasbir Kaur and Sukhpreet. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicants applied for the visas on 26 October 2015. 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 (Orphan Relative) visa.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria include at cl.117.211 and cl.117.221 that the applicant is the orphan relative of an Australian relative of the applicant, or is not an orphan relative only because the applicant has been adopted by the Australian relative.
In issue in this case is whether the applicants are orphan relatives of Mr Singh.
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.
Regulation 1.14 sets out a definition of orphan relatives. This includes at r.1.14(b) that the 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.
The applicant’s mother died on 17 January 2013, and a death certificate was provided. A site visit conducted by the Department on 6 May 2016 to the village where the applicants live states the local people confirmed she had died, and the Tribunal is satisfied this is the case.
The father of the applicants is said to be permanently incapacitated to provide care due to an alcohol or drug addiction.
Documentary evidence before the Tribunal
In the original submission that accompanied the application, it was stated that the father is a long term alcoholic and that his earnings were not enough for the family. As a result, it was said the children were living with their maternal grandfather Gurmail Singh with financial support from Jasbir Kaur. It later became apparent that the applicants are living with the paternal grandfather and that financial support is provided through their maternal grandfather, Gurmail Singh, who lives in another village.
The statement provided by Ms Jabir Kaur that accompanied the application states the reason the father cannot care for the children is that he suffers severe migraine and is totally bedridden. A statement from the father of the children, Karnail Singh, stamped 15 October 2015 states he is a single parent and totally bed ridden for the last two years due to a severe migraine problem.
A handwritten letter on letterhead of the Dua Clinic dated 18 September 2015 states Karnail Singh is suffering from hypertension and drug addiction. There is no mention of migraine.
A statement that says it is from the village sarpanch, or village head, Milkhi Ram, stamped 15 October 2015 states that after the death of his wife, Karnail Singh suffers from severe migraine and is alcoholic. A further but undated document was provided stating it is from the same person contains identical information but with the number of years changed. It now states that Karnail Singh has been completely bedridden for the last 3.6 years and unable to work. As no-one who gave oral evidence to the Tribunal has reported Karnail Singh is bedridden, nor was this in the report of the site visit, I place little weight on these documents and find they are inaccurate.
In a telephone interview with Mr Singh on 11 March 2016, it recorded that Mr Singh stated the children’s father is an alcoholic and has crossed all limits, constantly drinking and taking the children’s school fees. It is recorded that he said he sends money to the applicants’ grandfather, but that he is too old now, and he also sends money to his cousin Inderjeet for the applicants. He also has a bank account with Inderjeet and transfers money to this account.
The Department conducted a site visit to the village where the applicants live on 6 May 2016. The adverse information obtained at this site visit was put to the applicants in a letter dated 27 June 2016. The information was that:
·     Karnail Singh is employed as a taxi driver with Cambridge School which is inconsistent with his affidavit that he was unemployed for two years and is bedridden.
·     Sukhpreet stated that her father works as a driver at Cambridge School, and that her maternal grandfather had offered to care for the applicants but her father had refused.
·     A local self-government organisation member (‘panch’) advised that Karnail Singh was a taxi driver at a local taxi stand and is not an alcoholic and does not drink often, that he is of good character
·     That Sukhpreet was asked to provide contact details for her father so that the Departmental officer could interview him. An incorrect number was provided.
Other information recorded in the site that supports the application. This information is that Sukhpreet also told the officer that her father is an alcoholic and uses injectable drugs. She said he beats them, and does not return to the house every day. She said their grandfather also lives with them.
The father of the applicants’, Karnail Singh was invited for an interview with the Department. He did not attend. In regard to the father of the applicant not being available or attending for an interview with the Department, a submission was provided that he had been missing for a month and could not attend an interview on the required date because of his drug addiction. In support of the father being missing, statements were provided from a local organisation official and a friend of their father that the applicants had been trying to find their father for some days, and the local official had also been looking for him. The statements say in similar terms that the father uses drugs and may be somewhere under the influence of alcohol but no-one knows.
A statement from the local government official was provided he did not want to reveal that Karnail had a drug addiction and steals because he wanted to keep the goodwill and face of the village in front of visitors. It states he had previously been asked about Karnail and his answers created a bad impression of the community. The stated willingness to say what will give the best impression does not instil confidence in the documents from this person that are before the Tribunal.
A statement stamped 6 July 2016 was provided from a person who reports he was a driver at the Cambridge School and he worked with Karnail Singh at Cambridge School. It states after the death of his wife, Karnail Singh started taking drugs and his employment with the school was terminated. The Tribunal asked Mr Singh if he could obtain confirmation of Karnail Singh’s employment and the termination of his employment from the school. The Tribunal was advised after the hearing that the school refused to write a letter due to it being out of their scope of practice and legal boundaries.
After the hearing, a letter was provided on the letterhead Gurdwara Santgarh Sahib Welfare Society which states Karnail Singh has been absconding “for a long period of time.” It states the society has tried to counsel Karnail in vain and he is confirmed as an alcoholic and drug addict since the death of his wife and is incapable of taking care of his children. It states he rarely comes home. It also later states he has either gone very far from home or is deceased due to no news about him. I am not satisfied I can rely on this document as it is both internally inconsistent about whether Karnail’s whereabouts are unknown or he is deceased and inconsistent with the oral evidence of those who appeared before the Tribunal that he visits home intermittently.
Three further statements were provided after the hearing. They are all undated. Two are from local organisation officials and state in nearly identical terms that after the death of his wife, Karnail Singh became an alcoholic, it is difficult to take care of his children and that the child’s condition “is not well”. The third statement is from four residents of the village stating they have known Karnail Singh since birth. It states that since the death of his wife Karnail has suffered migraines and started consuming alcohol and drugs and he lost different jobs. It states he is not available at home most of the time and is missing for a long time. It states they care for the children but it is not possible to continue as the children are growing up and need attention. It states they have lodged a missing report for Karnail many times to police and now he is missing for a long time. It states the condition of the children is not good.
In terms of financial support of the applicants, Mr Singh provided receipts for money transfers to Inderjeet and Gurmail Singh. Between February and August 2015 three transfers were made. In 2016, money was sent to Gurmail Singh on six occasions, with amounts between AUD 92 – 700. In 2017 the amounts are not stated in the receipts, and there are two receipts that do not provide a year. There is one transfer in 2018 to Gurmail Singh of AUD244.
Oral evidence
At hearing, Mr Singh said that when the applicants’ mother was ill, Karnail was a bus and taxi driver. When she died, he started taking drugs and alcohol. Mr Singh said they tried to support him attending a doctor. Mr Singh said Karnail started taking money from the children and bashing them. His father-in-law looked after the children, but he has now had to have eye surgery. He said the house is in disrepair and part of the roof is missing. He said he had recently been to India and had returned to Australia for the hearing. He said he is sick of spending money which goes to Karnail and he needs help from the Department.
On being asked what was happening with the care of the children in October 2015 when the applications for the visas were lodged, Mr Singh said Karnail has stopped work due to depression and starting taking more drugs. As there was no-one to look after the applicants, he and his wife had to provide for school fees and clothes and meet all their needs. Karnail returns to the house where the applicants live as he knows Mr Singh and Ms Kaur send the children money from Australia and he will take money from the applicants for drugs. At that time Karnail was living in the house but would come and go. He said he is worried about the safety of the girls because of the people Karnail brings to the house.
He was asked whether there were any police reports regarding Karnail’s behaviour and he said he had were reports from the village head. He said Karnail beats them and takes money from them, and brings friends home who are drug addicts so they are concerned about the safety of the girls. He said that Karnail is home four to five times a week.
He was asked if they had ever been injured or sought assistance from the doctor, and he said that they had not seen the village doctor. He also said the police had not been involved because the children were injured. Mr Singh said no-one was there who could take the matter to the police and that the police will ask for money to file a report.
Karnail has not been to a doctor as there is no-one to take him to see a doctor or to an interview with the Department.
It was put to Mr Singh that it was difficult to verify the documents that had been provided, in particular that they were written by the person who they purport to be from, and the person’s role in the village. Mr Singh was asked if there was any information is support of the applicant or the circumstances of the applicants he could provide. He said that the principal of the school was aware of the situation and they could get statements in support from the principal of the school and the village head. It was reiterated at the end of the hearing that both Mr Singh and Sukhpreet had said the school was aware of the circumstances of the children, and information was sought from the school about the circumstances of the children. Mr Singh was advised it was possible the Tribunal would also seek verification of any documents he provides.
Mr Singh said that the school would not provide information about Karnail’s employment. This is not what was asked of him. What was asked was anything that verified the circumstances of the children and the arrangements for the care of the children. He has not provided anything form the school, despite both him and Sukhpreet stating the school was aware of the situation. I cannot see why the school would not provide anything regarding the situation of the children to the children themselves if they were aware of this situation.
Mr Singh said he was in India for six or seven weeks and tried to locate Karnail. He would visit the applicants during the day and told Karnail’s friend to let him know that Mr Singh was looking for him. He said while he was there he paid the school fees and bought school uniform for the children.
Mr Singh was asked what care the children were not receiving that they required, he said they needed a proper income and social security and a proper house in which to live as last week part of the roof had fallen in. He said the girls needed security.
The Tribunal also heard from Ms Jasbir Kaur. She said that Karnail now rarely comes home, only coming home about once a week when he has no money. She said he will come at night so no-one will see him. He will take the mobile phone of Sukhpreet and take money and if she refuses he will beat her up. She said she was scared the daughters will be sold or raped. She said Karnail doesn’t have a phone and they cannot talk to him and they ask the applicants to let them know when he is there so they can talk to him. On being asked if the applicants had sought medical treatment due to the actions of their father, Ms Kaur said he slaps them. Ms Kaur said that Karnail went to the house about a week ago and took INR 1,000 and Sukhpreet’s iphone. On being asked how the Tribunal was contacting Sukhpreet on the day of the hearing, she said Karnail had taken the phone but left the SIM card and Sukhpreet is able to use another relative’s phone.
Ms Kaur said the school fees are paid by transferring the money into the account of Monika’s teacher. She said he teacher’s name is Geeta, but she did not know a surname.
Sukhpreet gave evidence to the Tribunal. On being asked how often she sees her father she said “not much” and that whenever he comes he is drug addicted. On being asked which drugs, she said he is mostly drunk. She said they are not aware where he stays or where he is living, and that when he comes he beats them up. She said she last saw him approximately a week before the hearing and that he had taken INR 2,000 to 2,500 but did not take anything else. On being asked which telephone she was using she said her uncle gave her a phone when he visited but this had been sold to buy drugs and she was using a phone of a friend of her uncles. Sukhpreet said that her uncle was sending money to her grandfather but now that he had had an eye operation the money is sent directly to them. She said her father drinks too much and they had taken him to the Dua Clinic but he did not get any treatment. She said he just comes and takes money. Sukhpreet said the school is aware of their circumstances as they asked the school to remit the school fees for one of the applicants.
On being asked what care they needed, Sukhpreet said there is no-one to get her brother and sister ready for school or to prepare food for them. She said she is upset about all the housework she has to do as she has to do all tasks including cleaning and washing clothes.
On being asked if there was any other information that would show her father was incapable of providing care to the appellants, she said he is seldom home and this was reported to the police but there was not much interest. She said they are always tense, and repeated this when asked if any inability to care was permanent or temporary.
Conclusion
The Tribunal cannot conduct an assessment of the welfare of the applicants, nor is this the question before it. The question is whether it is satisfied that the applicants cannot be cared for by their father because he is permanently incapacitated. There is a medical certificate stating he suffers drug addiction and hypertension, but does not state anything about the effect of these conditions on his ability to provide care to the applicants. The school would be ideally placed to comment on the care of the children, but has not done so.
There are various statements from people living in the village, however these cannot be verified and in many cases are inaccurate as they refer to Karnail being bedridden when he is not.
The Tribunal does not doubt that drug or alcohol use can render a person incapable of providing care for a child either temporarily or permanently. However it does not follow that every person with a drug or alcohol addiction is permanently incapacitated in relation to providing care for their children. Sufficient information needs to be provided to the tribunal to be satisfied that this is the case. The supporting documents provided for the purpose of this application are flawed in that they are internally inconsistent about whether Karnail is missing or deceased or inaccurate, in the case of those that refer to him being bedridden. They contradict the information provided at the site visit about whether he is working.

These inconsistencies and inaccuracies result in the Tribunal not being satisfied it can rely on these documents. The Tribunal gave Mr Singh time after the hearing to provide any other information to support the contention that Karnail is permanently incapacitated to provide care to the applicant, however it is not satisfied this is established.
On the information before it the Tribunal is not satisfied he is permanently incapacity.
As a result, the applicants do not meet r.1.14(b) of the definition of orphan relative, and in turn do not meet cl.117.211(a) of the Regulations.
It is a serious matter to remove children from a parent. In the absence of any further information from Karnail other than an inaccurate statement in English that he is bedridden and suffers migraines, the Tribunal is not satisfied there is sufficient information to show the applicants should be separated from a parent or that is had been established that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicants.
Has the applicant been adopted by the Australian relative?
Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.
There is nothing before the Tribunal to establish that the applicants have been adopted by an Australian relative, and cl.117.211(b) is not met.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.
Kate Millar
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.

[2018] AATA 4117

3 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Reliance