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

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).
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.
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.
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.
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file.
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.

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 Velasco (Migration)

Details

AGLC: Velasco (Migration) [2021] AATA 3776
Case: [2021] AATA 3776
Decision Date: 8 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Subclass 117 (Orphan Relative) visa. The review applicant, the visa applicant's uncle and an Australian permanent resident, along with his wife (the visa applicant's maternal aunt), had formally adopted the visa applicant in the Philippines. The core dispute concerned whether the visa applicant met the eligibility criteria for the Orphan Relative visa, specifically the definition of an "orphan relative" and the requirement of being cared for by an Australian relative.

The Tribunal was required to determine if the visa applicant satisfied the criteria for a Subclass 117 visa, as outlined in the Migration Regulations 1994. This involved assessing whether the applicant was an "orphan relative" of an Australian relative, considering the definition of "orphan relative" in regulation 1.14, which requires that both parents are dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider the impact of the formal adoption by an Australian relative and whether the applicant continued to meet the criteria at the time of the decision, or if the only reason they did not was because they had turned 18.

The Tribunal reasoned that while the visa applicant was a relative of an Australian permanent resident and had been formally adopted, the definition of "orphan relative" in regulation 1.14(b) was not met. This regulation specifies that an applicant cannot be cared for by either parent because each is dead, permanently incapacitated, or of unknown whereabouts. The Tribunal found that the biological father's identity was unknown, but there was no evidence presented to suggest that the living mother was permanently incapacitated or of unknown whereabouts, nor that she was unable to provide care. The Tribunal also noted that the applicant had not turned 18 at the time of application and that the formal adoption by the Australian relative did not, in itself, satisfy the "orphan relative" criteria if the parental care requirement was not met.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, finding that the criteria for the Subclass 117 visa, and other visa subclasses in Class AH, were not met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file. 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. 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. 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. The issue in the present case is whether the applicant meets the criteria for a Child (Migrant) visa.SUBCLASS 117 – ORPHAN RELATIVE CRITERIAIs 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. ‘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) 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.P. MaishmanMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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