Velasco (Migration)

[2021] AATA 3776

Velasco (Migration) [2021] AATA 3776 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Enrico Dela Cruz Velasco

VISA APPLICANT:  Mr Billy Joe Razon VELASCO

CASE NUMBER:  1912218

HOME AFFAIRS REFERENCE(S):          2016044149 OSF2016044149

MEMBER:P. Maishman

DATE:8 September 2021

PLACE OF DECISION:  Perth

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

Statement made on 08 September 2021 at 1:38pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – no parental care – formal adoption – biological father’s identity unknown – no contact with the living mother – residing overseas for over 12 months – competent authority in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

EC v MIMIA [2004] FCA 978
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 10 April 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 23 August 2016. 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.

4. The delegate refused to grant the visa because the visa applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant is an orphan relative of an Australian relative.

5. The review applicant appeared before the Tribunal on 6 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Cristina Razon Velasco, the review applicant’s wife and Billy Joe Velasco, the visa applicant.

6. The review applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file.

9. The review applicant gave the Tribunal a copy of the delegate’s decision record which summarises the visa history. The visa applicant made claims in respect of the Subclass 117 visa. The visa applicant was born in March 2001 and was 15 years old at the time of application. The review applicant is the visa applicant’s uncle and was the holder of an Australian permanent visa (subclass 119) when he and his wife (the applicant’s maternal aunt) formally adopted the visa applicant in May 2015.

10. The oral evidence of the review applicant, Ms Velasco and the visa applicant was forthright and consistent. The Tribunal accepts each of them are witnesses of credit and accepts their evidence on that basis. 

11. The parties did not dispute the summary recorded above from the delegate’s decision record. The Tribunal had regard to documents on the Department’s file, relevantly a letter from the Department granting the review applicant, his wife and their daughter a permanent residence visa (subclass 119) on 14 November 2011. The review applicant and his wife formally adopted the visa applicant on 19 May 2015 according to a Philippine Court Adoption Order.

12. The issue in the present case is whether the applicant meets the criteria for a Child (Migrant) visa.

    SUBCLASS 117 – ORPHAN RELATIVE CRITERIA

    Is the visa applicant an orphan relative of an Australian relative?

13. 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.

14. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. 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): reg 1.03.  In the present case, Enrico Dela Cruz Velasco, is the relevant Australian relative.

    Is the visa applicant and orphan relative as defined in reg 1.14?

    No parental care – reg 1.14(b)

15. 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.

16. The delegates decision record notes it received no evidence establishing that either of the visa applicant’s biological parents are deceased, or permanently incapacitated so that they were unable to care for the visa applicant.

17. The review applicant, the visa applicant and Ms Velasco each gave oral evidence the visa applicant’s biological mother is alive. The review applicant told the Tribunal the visa applicant’s mother is living in Tarlac with her husband but they could not afford to financially support the visa applicant. The visa applicant said he had no knowledge of the whereabouts of his birth mother and had no interaction with her. The review applicant and Ms Velasco told the Tribunal the visa applicant’s birth mother had no permanent incapacity that prevented her from looking after the visa applicant.

18. Each of the parties claims the identity of the applicant’s biological father is not known to the applicant.

19. Neither the review applicant nor the visa applicant claim in their oral evidence that the visa applicant’s biological mother is deceased, or permanently incapacitated such that they are unable to care for the visa applicant.

20. The Tribunal acknowledges the visa applicant claims to have no knowledge of the whereabouts of his birth mother. This however does not mean that her whereabouts are unknown. The visa applicant’s mother is recorded on the adoption court order dated 19 May 2015 received by the Department, as working in Riyadh. The review applicant knows the whereabouts of the visa applicant’s biological mother and the visa applicant’s mother can be located by the visa applicant, albeit that he may not want to have anything to do with her.

21. There being no evidence to the contrary, the Tribunal is not satisfied the visa applicant cannot be cared for by his biological mother because she is either dead, permanently incapacitated or of unknown whereabouts. 

22. Accordingly, reg 1.14(b) was not met at the time of application.  

23. The Tribunal finds visa applicant was not an orphan relative, as defined, of an Australian relative at the time of application and the Tribunal finds that cl 117.211(a) is not met at the time of application.

    Has the applicant been adopted by the Australian relative?

24. 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.

25. The Tribunal has found above the visa applicant does not meet the definition of ‘orphan relative’ in r 1.14 because his biological mother is not unable to care for the visa applicant because she is dead, permanently incapacitated or of unknown whereabouts.

26. The Tribunal accepts the evidence of the parties, supported by a Philippines court order, the visa applicant was adopted by the review applicant and his wife on 19 May 2015.  The visa applicant is not an orphan relative only because he has been adopted by an Australian relative but because his circumstances do not meet the definition of ‘orphan relative’ in r 1.14.

27. The Tribunal finds the visa applicant’s adoption by his Australian relative is not the only reason he does not meet the definition of orphan relative

28. Accordingly, cl 117.211(b) is not met.

29. Given the findings above, cl 117.211 is not met.

30. For these reasons, the criteria for the grant of a Subclass 117 visa are not met.

    SUBCLASS 101 – CHILD CRITERIA

    Is the visa applicant a dependent child of a person who is an Australian citizen, permanent visa holder, or eligible New Zealand citizen?

31. Clause 101.211 requires that at the time of application the visa applicant is a ‘dependent child’ of an eligible person, has not turned 25 years, and if an adopted child, they were adopted overseas by a person who, at the time of adoption, relevantly to this matter was not a holder of a permanent visa, but later became a holder of a permanent visa (cl 101.211(1)(c)(ii)).

32. It is not disputed the review applicant and his wife became the holders of a permanent visa when they were granted the subclass 119 visa on 14 November 2011. It is not disputed the visa applicant was adopted by the review applicant (the sponsor for the visa) and his wife (the sister of the visa applicant’s biological mother) on 19 May 2015.

33. The Tribunal finds that at the time of the visa applicant’s adoption by the review applicant, the review applicant was the holder of a permanent visa.

34. Accordingly, cl 101.211(1)(c)(ii) is not met.

35. Given the above finding cl 101.211 is not met.

36. For these reasons, the criteria for the grant of a subclass 101 visa is not met.

    SUBCLASS 102 – ADOPTION CRITERIA

37. Clause 102.211(1) requires that at the time of application the applicant meets the requirements of subclause (2), (3), (4) or (5).

38. The review applicant gave evidence that the Tribunal he and his wife came to Australia together with their daughter in the months after they were granted the permanent residence visa in November 2011. He travelled with his wife and daughter to the Philippines for one month in 2013 and at that time made application for the formal adoption of the visa applicant. The visa applicant’s adoption  by the review applicant and Ms Velasco was formalised by the court on 19 May 2015. In 2015 his wife and daughter visited the Philippines for three weeks and his wife travelled to the Philippines again in 2018.

39. The review applicant and Ms Velasco gave consistent evidence neither of them had been residing overseas for more than 12 months at the time of the visa application.

40. The review applicant told the Tribunal the adoption was not an adoption involving any competent authority in Australia.

41. The review applicant told the Tribunal the adoption was conducted internally to the Philippines and did not involve any other country.

42. The Tribunal finds the visa applicant was adopted in the Philippines on 19 May 2015 by the review applicant and his wife who were holders of a permanent visa at the time of adoption. The Tribunal finds neither the review applicant nor his wife had been residing overseas for more than 12 months at the time of the visa application.

43. Accordingly subclause (2)(b)(ii) is not met.

44. There is no evidence before the Tribunal that a competent authority in Australia has approved the review applicant and his wife as prospective adoptive parents.

45. Accordingly subclauses (3)(d) and 4(e) are not met.

46. There is no evidence before the Tribunal the visa applicant was adopted in accordance with the Adoption Convention, in an Adoption Convention country, by the review applicant, his wife.

47. Accordingly subclause 5(b) is not met.

48. The Tribunal finds the applicant does not meet the requirements of subclauses (2), (3), (4) or (5) and so does not meet the requirements of cl 102.211(1).

49. For these reasons, the criteria for the grant of a subclass 102 visa is not met.

    CONCLUSION

50. The Tribunal has had regard to the documentary evidence and oral submissions. It was submitted that the Tribunal should apply some compassion when making its decision. The Tribunal is not unsympathetic to the visa applicant’s and his parents’ position. However, as explained to the parties, the Tribunal is bound to apply the law and has no special powers not to do so. There is no provision in the visa subclasses of the Class AH visa that would allow the primary criteria requirements to be disregarded because of compassionate reasons.

51. For the reasons above, the criteria for the grant of a Subclass 117 visa are not met. Additionally the criteria for a grant of the other visa subclasses (101 and 102) in Class AH are not met.

    DECISION

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

    P. Maishman
    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.