SINGH (Migration) - [2018] AATA 4117

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…

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) [2018] AATA 4117
Case: [2018] AATA 4117
Decision Date: 3 September 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicants, children seeking a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan relative), against a decision of the Migration Review Tribunal. The central dispute revolved around whether the applicants qualified as "orphan relatives" under the relevant regulations, specifically concerning the alleged permanent incapacity of their father to provide care.

The legal issues before the Tribunal were whether the applicants' father was permanently incapacitated to provide them with care, and consequently, whether the applicants met the definition of "orphan relatives" for the purpose of the visa subclass. This required the Tribunal to assess the credibility and reliability of the documentary and oral evidence presented regarding the father's alleged incapacitation due to alcohol addiction, migraines, and other medical conditions.

The Tribunal found significant inconsistencies and inaccuracies in the evidence provided to support the claim of the father's permanent incapacitation. Statements regarding his medical condition, including being bedridden, contradicted information obtained from a site visit and oral interviews, which indicated he was employed as a taxi driver. Furthermore, medical certificates were either vague about the impact of alleged conditions on his ability to provide care or contained conflicting diagnoses. The Tribunal concluded that it was not satisfied, on the available information, that the father was permanently incapacitated. Consequently, the applicants did not meet the definition of "orphan relative" under regulation 1.14(b) and clause 117.211(a) of the Migration Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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