Weng (Migration)

[2021] AATA 2048

Weng (Migration) [2021] AATA 2048 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Cuibin Weng

VISA APPLICANT:  Master Caoze Weng

CASE NUMBER:  1903890

DIBP REFERENCE(S):  OSF2017/019159

MEMBER:Helena Claringbold

DATE:9 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211(a) of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 09 June 2021 at 7:59am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of Australian relative – cannot be cared for by either parent – applicant’s mother died and father serving lengthy prison term – ‘permanently incapacitated’ – documentary and DNA evidence of aunt/nephew relationship – grandparents’ old age and poor health – civil judgement of legal guardianship in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5(1)
Migration Regulations 1994 (Cth), rr 1.03, 1.14, 1.14A; Schedule 2, cls 117.111, 117.211, 117.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 11 September 2017, Master Caoze Weng, the visa applicant, applied for a Child (Migrant) (Class AH) visa. The application was based on his relationship with Ms Cuibin Weng, the sponsor and review applicant.

2. On 19 December 2018, a delegate of the Minister of Home Affairs refused to grant the visa. The delegate was not satisfied that the visa applicant met cls.117.211(a) and 117.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. On 2 February 2021, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The sponsor was represented in relation to the review by her registered migration agent (migration agent).

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely the evidence in the Department of Home Affairs (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the visa applicant is the orphan relative of the sponsor.

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

7. Clause 117.211 of the Regulations 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 of the Regulations.

8. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons.

9. 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): r.1.03.  In the present case, the sponsor who is an Australian citizen, is the aunt of the visa applicant and the relevant Australian relative.

   Permanent incapacity

10. The orphan relative definition 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.[1] ‘Parent’ is defined in s 5(1) of the Act and supplemented by .1.14A(1).[2]  The  definition recognises persons in same-sex relationships as parents of a child even where there is no biological relationship or through marriage or adoption.

    [1] Regulation 1.14(b).

    [2] Inserted by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth) (No 144,2008) and omitted from r.1.03 by SLI 2009, No 144.

11. Only the applicant’s parents’ status is relevant to the assessment.  Where custody rights are held by another relative, no regard should be given to whether the child can be cared for by a relative other than their parent(s) or Australian relative.[3]

    [3] If custody rights are held by any other relative, this may be relevant to the Tribunal’s satisfaction of public interest criterion (PIC) 4017 (laws of applicant’s home country etc).

    BACKGROUND ON THE EVIDENCE

12. Master Weng is a 15-year-old Chinese citizen who was born was born in Fujian Province, China. Ms Cuilan Weng and Mr Xianli Cao are his biological parents. On 24 August 2011, Mr Cao was sentenced to one-year imprisonment with one-year probation for committing credit card fraud. On 23 July 2013, Master Weng’s parents divorced and he went to live with his mother. On 28 October 2016, his mother died as a result of an accident. On 25 May 2016, his father was placed in criminal detention on suspicion of misfeasance, bribery and fraud charges. He was sentenced to 11 years and 15 years.  He was given a 20-year set term sentence from 25 May 2016 to 2 May 2036.  On 19 August 2019, on appeal, Mr Cao’s prison terms were reduced to 19 years and 6 months and he would remain in prison until at least 24 November 2035. Legal advice provided indicates that Mr Cao has no right to appeal the judgement and would need to serve at least eight years in prison until 2029.

13. The sponsor was born in 1981, in the Fujian Province, China. In April 2009, she entered Australia.  She is in a married relationship with Mr BJ and they have two children. On 20 February 2014 she was granted Australian citizenship. She is the sister of the visa applicant’s mother and therefore, the aunt of the visa applicant. As detailed below the aunt     nephew relationship is demonstrated by DNA evidence.

14. Information provided as part of the visa application included the following.

    ·Notarised birth certificates declaring the visa applicant’s biological mother to be Ms Cuilan Weng and his biological father to be Mr Xianli Cao.

    ·A notarised relationship certificate declaring that Mr Xiuqi Weng and Ms Huinyu Jin are the parents of Ms Cuibin Weng and Master Weng is the son of Ms Cuibin Weng’s elder sister.  

    ·A copy of a death certificate recorded that Ms Cuilan Weng died as result of an accident on 28 October 2016.

    ·A copy of the Criminal Judgement proceedings from the Peoples Court of Taijiang District, Fuzhou, Fujian Province dated 20 December 2016. The document recorded that Mr Xianli Cao was placed in criminal detention on 25 May 2016 on suspicion of committing bribery and fraud. Mr Cao was given 11 years, 15 years.  It was determined that Mr Cao was given a 20-year set term sentence from 25 May 2016 to 2 May 2036.

    ·A civil judgement agreement issued by the Minhou Peoples of Fujian Province dated 21 December 2016.  This stated that due to Mr Cao’s detention, he is unable to perform guardianship duties for his son.  Master Weng’s maternal grandparents Xiuqi Weng and Jin Huinv and paternal grandparents Wenqi Cao and Xiuying Zhou are unable to serve as his guardians because of old age and poor health. Therefore, the guardianship of Master Weng is legally transferred to Ms Cuibin Weng and Mr BJ.  Ms Weng is noted as being willing to accept the guardianship agreement and to being responsible for his living and educational expenses.   

    ·A translated copy of a Criminal Judgement made by The Intermediate People’s Court of Fuzhou City Fujian Province dated August 2019. This details Mr Cao’s appeal and recorded a reduced fixed term imprisonment of 19 years and six months from 25 May 2016 to 24 November 2035.

    ·A letter dated January 2021 from a legal firm in China. This explains that Mr Cao has no further right to appeal and needs to service at least eight years until 2029.

    ·A letter dated January 2021 from the applicant’s maternal grandparents.  They give details of Mr Cao’s imprisonment.  They advise that the visa applicant has lived with them since his mother died and they have little contact with Mr Cao. They state that they cannot continue to care for the visa applicant due to ill health.

15. In January 2021, the migration agent provided information including the following. On 19 August 2019, Mr Cao’s prison term was reduced to 19 years and 6 months on appeal and he is to remain in prison until at least 24 November 2035. Legal advice in China on 14 January 2021 is that the appeal decision is final, and Mr Cao has exhausted all avenues of appeal and needs to serve at least eight more years of his 19-and-a-half-year sentence from now. He provided a translated copy of ‘The Intermediate People’s Court of Fuzhou Court of Fuzhou City, Fujian Province, Criminal Judgement of 19 August 2019 detailing the appeal judgement.

16. The migration agent stated that the Department made the finding that even though Mr Cao’s imprisonment prevents him from looking after the visa applicant, his imprisonment does not mean that he is ‘permanently incapacitated’ and as such, the visa applicant does not satisfy r.1.14(b) of the definition of ‘Orphan Relative’. The question of whether Mr Cao’s situation falls under the circumstances described under Regulation 1.14(b) can be narrowed down to:

    • Whether Mr Cao is incapacitated; and
    • If Mr Cao is incapacitated, whether that incapacity is considered to be ‘permanent’.

17. The migration agent goes on to quote information from the Department’s Procedures Advice Manual (PAM3) and references judicial determinations. He stated that PAM3 considers incapacitation ‘permanent’ when the incapacity has existed for the greater part of the child's minority; and may reasonably be expected to continue to exist for a greater part of the remaining years of the child's minority (that is, rather than for the rest of the child's life). He stated that in light of the above, incapacitation is considered to be ‘permanent’ with reference to a child’s minority rather than the rest of the child’s life and as such, considerations of the parent’s incapacity should be confined to the length of time until a child turns 18 years of age.

18. The migration agent submits that Mr Cao’s deprivation of liberty through incarceration is also a form of incapacity. The fact of the person’s desire to provide the care for their child is quite irrelevant on the basis that they are legally and physically incapable or providing that care. Mr Cao’s prison sentence can therefore be understood in the context of a lack of capacity. Mr Cao does not have the freedom of movement and as a result, does not have the choice and opportunity to be with and care for the visa applicant. He stated that Mr Cao’s imprisonment has a strong and direct negative impact on his ability to care for his son.  He cannot reside at his son’s residence and is incapable of caring for him on a daily basis and unable to provide for him financially because of his imprisonment.

19. The migration agent concluded by stating that although imprisonment does not fit into traditional views of physical or mental impairment, understood in the wider context of incapacity, imprisonment has the practical effect of preventing Mr Cao from physically caring for the visa applicant, by depriving him of his freedom of movement. Mr Cao has also been imprisoned since 25 May 2016 and is expected to remain in prison until at least 2029 which is for the rest of the visa applicant’s life as a minor and represent more than a third of the visa applicant’s life as a minor in total.

20. The sponsor told the Tribunal the following. The visa applicant and his parents lived with his maternal grandparents and he continues to live with his maternal grandparents. His father was arrested in 2016 and is serving a term of imprisonment of 19 years and 6 months. Legal advice is that he has no further right of appeal and will remain in prison for at least eight years. In October 2016, his mother fell off the roof of her home and died. While his mother was alive, she provided and cared for the visa applicant. Since her passing his maternal grandparents have cared for him but she supports him financially. His grandparents cannot continue to care for him due to ill health and age.

21. The Tribunal discussed with the sponsor the following. A notarial certificate stated that she is the younger sister of the visa applicant’s mother.  However, it does not provide the details of their parents and other documents do not substantiate that she and the visa applicant’s mother are siblings. A notarial certificate No. 2480 declared that the sponsor is the legal agent for the visa applicant and her sister is a related person.  However, it also recorded the names of two people ‘Lin Xinji or Jiang Lieqing’ who appear unrelated to the visa applicant and the sponsor.  The sponsor stated that she has documents to substantiate her relationship with the visa applicant’s mother. She claimed that the notarial certificate recording the unrelated persons had been translated in error and the original document does not contain the names of ‘Lin Xinji or Jiang Lieqing’. The Tribunal provided additional time for the sponsor to provide information about her relationship with the visa applicant’s mother.  Regarding the document recording ‘Lin Xinji or Jiang Lieqing’, the Tribunal requested that the sponsor have the original document translated by NAATI with the translator making a statement about the ‘Lin Xinji or Jiang Lieqing’. The Tribunal invited the sponsor and the visa applicant to provide DNA evidence to demonstrate their relationship.

22. On 14 February 2014, the migration agent provided the following:

    ·Notarial birth certificates for Ms Cubin Weng No 20 and Ms Cuilan Weng No 21. These recorded their biological parents as ‘Weng Xiuqi and Jin Huinyu’.

    ·New translated notarial certificate 2480. This notarises kinship as follows. ‘Weng Cuibin is the younger sister of Weng Cuilan and Weng Caoze is the son of Weng Cuilan.’

    ·A NATTI translator’s statement that neither ‘Lin Xinji nor Jiang Lieqing’ appear in the original Chinese language notarial certificate 2480. 

    ·Agreement that the sponsor and visa applicant will undergo DNA testing.

23. On 16 March 2021, the migration agent advised the Tribunal of delays in the collection of DNA evidence resulting from COVID pandemic restrictions and the renewal of the visa applicant’s passport.

24. On 26 May 2021, the Tribunal was provided a letter dated 21 May 2021 from DNA Laboratories. This provided DNA evidence to demonstrate that the sponsor is the putative aunt of the visa applicant. It also provided DNA evidence to demonstrate that the visa applicant is the putative nephew of the sponsor. It recorded that the sponsor is ‘highly likely’ to be the aunt of the visa applicant.

    OTHER CONSIDERATIONS

25. The migration agent drew the Tribunal’s attention to the Department’s PAM3 and in particular to Division 1.2, r.1.14 Orphan Relative which considers incapacity and previous judiciary determinations. The Tribunal is not bound by the PAM3. It is guided by court determinations and is not precluded in any way in considering policy currently in force. Ultimately, the Tribunal’s responsibility is to consider the circumstances of each case before it and to make the correct or preferable decision on the evidence. The Tribunal has considered all the information before it and has progressively come to its decision having had regard to the individual and complete circumstances of this case as detailed above.

26. The Tribunal considered the evidence individually and completely and has come to the following determination. The visa applicant’s mother is deceased.  His father is alive. He began an imprisonment sentence on 25 May 2016. At that time, the visa applicant was a minor aged 10 years old. At the time of the visa application, the visa applicant had been without the care of his father for fifteen months. At the time of this decision, his father has been in prison for approximately five years of the visa applicant’s minor years. There is conflicting information about when Mr Cao is likely to be released from prison. However, on the best-case scenario he may be released in 2029. This means that the visa applicant will continue without the care of his father for the remaining three years as a minor as he will turn 18 in 2024.  Normally, Mr Cao would not be considered permanently incapacitated because he is in prison. However, the effect of his incarceration is that Mr Cao does not have the power to care for the visa applicant.  As a result of his incarceration Mr Cao has and will be without the power to care for the visa applicant for what amounts to a substantial part of his minor years. Therefore, his incarceration has the effect of rendering him permanently incapacitated to care for the visa applicant when considering the visa applicant as a minor. Mr Cao’s loss of power and inability to care for the visa applicant existed, at the time of the visa application and continues at the time of the decision.

27. The Tribunal is satisfied that the visa applicant has not turned 18 and does not have a spouse or partner and is a relative of the sponsor.  It is satisfied that the visa applicant’s mother is dead and his father, in relation to his minor years, is permanently incapacitated and there are no compelling reasons to believe the grant of the visa would not be in the best interests of the visa applicant.

28. The Tribunal is satisfied, that the visa applicant was an orphan relative of an Australian relative at the time of application and is an orphan relative of an Australian relative at the time of this decision. Therefore, the applicant meets cl.117.211(a) of the Regulations and cl.117.221(a) of the Regulations.

    DECISION

29. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211(a) of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    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.