1920674 (Migration) [2021] AATA 3223 (15 July 2021)

Last Updated: 8 September 2021

1920674 (Migration) [2021] AATA 3223 (15 July 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1920674

MEMBER: Nicholas McGowan

DATE: 15 July 2021

PLACE OF DECISION: Melbourne

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

• cl 117.211(a) for the purposes of Schedule 2 to the Regulations; and
• cl 117.221 of Schedule 2 to the Regulations.
  

Statement made 15 July 2021 at 1:36pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of the visa applicant’s mother – visa applicant’s father incapacitated – permanently incapacitated – ability to care for the child – decision under review remitted

LEGISLATION

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

CASES

Nguyen v MIMA (1998) 158 ALR 639


Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 2019 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 31 December 2018. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only 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).

3. Clause 117.211 requires that at the time of application each 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)). Each visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because s/he has turned 18: cl 117.221.

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

5. 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, the sponsor claims to be the applicants’ aunt, and is therefore their relevant Australian relative. Specifically, the sponsor claims to be the applicants’ father’s sister.

6. The Minister’s delegate (in her Decision dated 4 July 2019) found the applicants did not meet Regulation 1.14(b).

7. The Tribunal invited the applicants to present evidence and arguments before it. The applicants and their migration agent attended two public hearings conducted by the Tribunal.

8. Regulation 1.14(b) requires that the visa applicant(s) 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.

Analysis

9. The sponsor of the applicant has claimed in her Sponsorship Form that the applicants’ mother is dead, and their father incapacitated.

10. In support of the claim the applicants’ mother is deceased the applicants have provided a handwritten death certificate issued from a Hospital ([named]) in Quetta issued 9 March 2018. That certificate states the applicants mother died on [a day in] March 2018 t 4:45pm. A Government of Baluchistan (Pakistan) computerised death certificate was also provided as evidence of the mother’s death and contained the same date o death. That document was issued [in] November 2018. Another document, a letter (handwritten), from [a named] Hospital in Karachi dated 13 May 2017 states the applicant mother was diagnosed with Breast cancer in 2012 and commenced chemotherapy treatment.

11. Based on the above documentary evidence, in addition to the claims and oral evidence of the applicants and sponsor, and in the absence (to date) of any claim or evidence the documents are somehow fake or bogus, the Tribunal accepts the applicants mother became deceased as claimed on [the day in] March 2018.

12. In support of the claim the applicants’ father is incapacitated the applicants provided a visa notice which indicates [in] March 2017 their father was granted a Safe Haven Enterprise (Subclass 790) visa (SHEV) to Australia. The sponsor also provided a statement which advises the applicants father fled Pakistan (in fear of his life) and received the SHEV visa, which does not allow him to sponsor his children to Australia. In the information provided by the sponsor it is outlined that he applicants’ father was not able to sponsor the applicants because he was not the holder of a permanent resident visa. At the time of application, no medical evidence (whatsoever) much less any medical evidence which may support the claim the applicants’ father was ‘permanently incapacitated’.

13. The applicants have since the delegate’s refusal Decision (dated 4 July 2019) provided additional documentary evidence to this tribunal in support of their applications. A psychologist report (of the applicants’ father) dated 12 December 2019. The report outlined the “Treatment and Diagnosis” as follows:

“[Details deleted of the visa applicants’ father’s mental health conditions, recommended treatments and psychologist sessions.]”

14. That same report concluded:

“[Details deleted of the applicants’ father’s conditions and causes, fear of return to Pakistan and his concerns for his children.]

15. The applicants have also provided further written statements and advise the Tribunal they presently live with their grandmother who is in her [age range] and has [a health condition]. A number of submissions have also been advanced by their migration agent in support of the visa applications.

16. Permanent incapacity for the purposes of reg 1.14 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.

17. The facts of this case must be considered in the context of the circumstances of the applicants’ father and children, including the circumstances within which the incapacitation occurred.

18. While the Tribunal accepts the applicants’ father’s psychological assessment conducted in late 2019 (including [specified conditions]), there is no medical evidence before the Tribunal that at the ‘time of application’ the applicants’ father was medically ‘permanently incapacitated”.

19. The applicants’, migration agent advances the claim that the applicants’ father has been ‘permanently incapacitated’ from providing care to his children since July 2012 when he was forced to flee Pakistan in fear of his life. Th Australian government accepted his claims in these regards and issued him a visa accordingly. Because of the issuance of that visa, which was based on his real fear of serious harm, it is self-evident that his ability to care for his children was incapacitated, and permanently so given the duration naturally involved in such a process and consistent with the PAM3 guidelines as they speak to the remaining years of a child’s minority.

20. The Tribunal is satisfied that a parent's incapacity, the applicants’ father’s in this instance, must be related to their ability to care for the child. It is not a question of incapacity in any abstract or absolute sense

21. Accordingly, the Tribunal has been satisfied Regulation 1.14(b) was met at the time of application and continues to be met at the time of decision.

22. For the reasons set out above, the applicants were an orphan relative of an Australian relative at the time of application.

23. Furthermore, the applicants are each an orphan relative of an Australian relative at the time of this decision.

24. Given the above, it follows that the Tribunal finds that clause 117.211(a) is met and continues to be met at the time of decision.

25. Further, clause 117.211(a) is met for the purposes of clause 117.211 and clause 117.221.

26. For these reasons, the criteria for the grant of a Subclass 117 visa are met as set out above, and the remaining criteria must now be assessed by the Minister (and/or his delegate).

DECISION

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

• cl 117.211(a) for the purposes of Schedule 2 to the Regulations; and

• cl 117.221 of Schedule 2 to the Regulations.

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.14 Orphan 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.