Singh (Migration)

[2017] AATA 57

Singh (Migration) [2017] AATA 57 (11 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Satnam Singh

VISA APPLICANT:  Master Manjinder Singh

CASE NUMBER:  1605797

DIBP REFERENCE(S):  2015/079805

MEMBER:Kira Raif

DATE:11 January 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 11 January 2017 at 5:23pm

CATCHWORDS

Migration – Child (Migrant)(Class AH) visa – Subclass 102 (Adoption) – Adoption order not  in accordance with Adoption Convention – Provision of financial support – Not sufficient to meet requirements – Review applicant did not reside continuously overseas for 12 months –  Child’s mother still alive – No evidence to show she cannot care for child

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, cl 117.211

CASES

Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation

(1941) 64 CLR 241
Nguyet Huong Phung v MIEA (1997) 74 FCR 422

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 Immigration on 23 February 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 102 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of India, born in March 2003. He applied for the visa on 30 September 2015. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl. 102.211. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 9 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the visa application was lodged, the Child (Migrant) (Class AH) visa contained three subclasses: subclass 101 (Child); subclass 102 (Adoption) and subclass 117 (Orphan relative) – Item 1108 of Schedule 1 of the Regulations. The applicant sought to be assessed against the subclass 102 (Adoption) visa. There is no evidence before the Tribunal to suggest that the applicant meets any of the key criteria for the subclass 101 or subclass 117 visas.

5. In order to be granted a subclass 102 (Adoption) visa, the applicant must satisfy the criteria set out in Schedule 2 of the Migration Regulations 1994 (the Regulations). The issue in question in this case is cl 102.211 which is relevantly set out below:

   (1)          The applicant meets the requirements of subclause (2), (3), (4) or (5).

   (2)          An applicant meets the requirements of this subclause if:

   (a)the applicant has not turned 18; and

   (b)the applicant was adopted overseas by a person who:

   (i)was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and

   (ii)had been residing overseas for more than 12 months at the time of the application; and

   (c)the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

   (d)the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.

   …

   Is the applicant an adopted child?

6. There is no evidence before the Tribunal that a competent authority in Australia has approved the prospective adoptive parent or the spouse. The Tribunal is not satisfied the visa applicant meets cl. 102.211(3) and (4). The applicant provided with the application a copy of the Adoption Order dated 16 September 2015. There is no suggestion that the Adoption Order is in accordance with the Adoption Convention. The Tribunal is not satisfied the visa applicant meets cl. 102.211(5).

7. To meet the requirements of cl. 102.211(2), the Tribunal must be sanitised that the sponsor has been residing overseas for more than 12 months at the time of the application.

8. The review applicant provided to the Tribunal a number of character references, police certificates and Working with Children certificates, as well as other evidence of his relationship with the visa applicant. The Tribunal accepts that the applicant is well regarded by those around him and has made a contribution to the local community. The review applicant also presented evidence to the Tribunal of having provided financial support to the child. The Tribunal accepts that evidence. The Tribunal accepts the review applicant has been providing financial support to the child and has established a close relationship with the child and had taken an active role in the child’s upbringing. However, these matters do not address the statutory requirements for the grant of the visa.

9. The application for the visa was made on 30 September 2015. In his written submission to the Tribunal dated 30 December 2016 the applicant argues that his brother, the child’s father, passed away when the child was 7 months old and at that time he started to support and care for the child, providing regular financial support. The review applicant notes that he adopted the child in accordance with the law of Punjab in September 2015 and the adoption was registered. The applicant’s evidence to the Tribunal is that upon the death of his brother, he informed the village authorities of his responsibility towards the child even though the formal adoption was not formalised until 2015. The Tribunal accepts that evidence. The Tribunal accepts that there is a close relationship between the child and the review applicant in Australia and that the review applicant has parental responsibility towards the child and has provided financial support to the child and is willing to continue to do so. The Tribunal accepts that the child is financially dependent on the review applicant. In the Tribunal’s view, that is not enough.

10. The requirement in cl. 102.211(2)(b) is that the parent must be residing overseas for more than 12 months at the time of the application. The Tribunal has formed the view that the visa applicant does not meet that requirement for two reasons, firstly because he has not lived overseas for 12 months continuously and, secondly, because he has not been ‘residing’ overseas.

11. With respect to the first issue, the review applicant claims that he had spent more than 12 months cumulatively in India and the delegate erred in finding, by reference to policy, that there is a requirement for continuous overseas residence. The applicant claims he could not live in India continuously due to his obligations to his family in Australia.

12. It is not entirely clear whether cl.102.211(2)(b)(ii) requires 12 months continuous residence overseas. In Nguyet Huong Phung v MIEA,[1] the Court considered a similarly worded, previous version of the provision which required that the applicant be ‘a child who has not turned 18 adopted by an Australian citizen…where: the adoptive parent has been residing overseas for more than 12 months at the time of the application…’ The Court held that this required the 12 months or more to be prior to the time of application (impliedly, immediately prior to the time of application) and it was not sufficient if the adoptive parent has had, at some earlier time, a period of more than 12 months overseas residence. While this does not directly address the issue of continuous residence, the language appears to suggest a single period of 12 months or more is required and not several periods amounting to 12 months or more.

    [1] (1997) 74 FCR 422.

13. The review applicant informed the Tribunal about his periods of travel to, and residence in, India since 2003. The Tribunal notes that he has not spent continuous 12 months in India since that time, even though he may have spent more than 12 months in India during his multiple visits. If the reasoning in Nguyen Huong Phung is to be applied here, the Tribunal finds that the review applicant has not resided overseas for 12 months continuously. For that reason the Tribunal finds that the visa applicant does not meet cl. 102.211(2)(b)(ii).

14. With respect to the second issue, the Tribunal is not satisfied that the review applicant has been ‘residing’ overseas for the requisite period.

15. The concept of ‘residence’ has received considerable attention in common law. Relevantly, it was considered by the High Court in Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation, where Justice Williams made the following observation regarding residence:

    The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode. [2]

    [2] (1941) 64 CLR 241 at 249.

16. The review applicant’s evidence to the Tribunal is that he has commitments in Australia, including work and family responsibilities, due to which he could not remain in India longer. The review applicant’s evidence is that while in India, he lives at his ancestral home with his mother and sister in law and helps his mother with farming work but generally relies on his savings from Australia. It appears that the review applicant has always intended to maintain Australia as his home and place of usual abode while his trips to India had always been of temporary nature and had been intended to be of temporary nature and not to establish a place of residence. The Tribunal finds that the review applicant had no intention of residing in India or of establishing India as his home. The Tribunal is the view that the review applicant’s place of residence remains Australia, and his visits to India, which vary from a few weeks to several months, do not establish ‘residence’. The review applicant does not seek employment, he does not own accommodation, he does not view India as his habitual place of abode and does not intend to live in India. He views his visits as temporary absence from his normal life and normal place of abode in Australia. The Tribunal is not satisfied that the review applicant had been ‘residing’ overseas for the requisite period. For that reason also, the Tribunal is not satisfied the review applicant has been residing overseas for more than 12 months at the time the application was made and the visa applicant does not meet cl. 102.211(2)b)(ii).

17. The Tribunal is not satisfied the visa applicant meets any of the subclauses in cl. 102.211. The Tribunal is not satisfied the visa applicant meets that provision.

18. The Tribunal has also assessed the applicant against the other subclasses in Class AH. Clause 101.211(1)(c)(i) provides that the applicant must either be a natural child or a step-child of the sponsor. In this case, there is no evidence that the child is either a natural child or a step-child of the review applicant and the Tribunal is not satisfied that the visa applicant meets cl.101.211(1)(c)(i). Clause 101.211(1)(c)(ii) refers to an adopted child, but requires that the child was adopted by a person who, at the time of adoption, was not, relevantly, an Australian citizen. The visa applicant provided with his application Form 40 which indicates that the sponsor became an Australian citizen in 1993. The review applicant was an Australian citizen at the time of adoption. Accordingly, the Tribunal is not satisfied that the visa applicant meets cl.101.211(1)(c) and cl.101.211.

19. Clause 117.211 requires the applicant to be a relative of the Australian relative. The review applicant does not claim the visa applicant is his orphan relative. The review applicant’s evidence to the Tribunal is that the child’s mother had been depressed since the death of her husband, takes medication, and had not been caring for the child since that time. There is little probative documentary evidence to support these claims and the Tribunal is not satisfied that the child’s mother has been so depressed since 2003 that she has become permanently incapacitated. In the Tribunal’s view, having a medical condition – even if it was established – is not sufficient. The applicant has not satisfied the Tribunal the mother is permanently incapacitated. Neither has the review applicant satisfied the Tribunal that the child’s mother cannot care for him due to such incapacity.

20. Thus, while the Tribunal accepts that the child’s father has passed away, the Tribunal is not satisfied that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied the visa applicant is an orphan relative of the sponsor. The Tribunal is not satisfied that the visa applicant meets cl.117.211 of the Regulations.

21. The review applicant requested the Tribunal to apply the policy flexibly and allow the child to be cared for in Australia. The Tribunal is unable to do so. Having found that the visa applicant does not meet the requirements for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

    Conclusion

22. For the reasons given above the Tribunal finds the visa applicant does not satisfy the requirements of cl.102.211.

    DECISION

23. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Kira Raif

    
    

    Senior Member