1414065 (Migration)

[2016] AATA 4091

1414065 (Migration) [2016] AATA 4091 (11 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Alfred Sankoh

VISA APPLICANTS:  Mr Ibrahim Conteh
Mr Dauda Conteh

CASE NUMBER:  1414065

DIBP REFERENCE(S):  F2011/046490 OSF2011/046490

MEMBER:Rieteke Chenoweth

DATE:11 July 2016

PLACE OF DECISION:  Sydney

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

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

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 11 July 2016 at 4:05pm

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 12 June 2014 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 31 August 2011. 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 (the Regulations). Relevantly to this case, they include cl.117.211

4. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicants were orphan relatives of the review applicant. In the assessment the delegate only referred to two other visa applicants who the sponsor lodged previous applications for.

5. The review applicant appeared before the Tribunal on 6 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Dauda Conteh and Ibrahim Conteh, the visa applicants.  The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicants are the orphan relatives of the review applicant.

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

8. 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.

9. ‘Orphan relative’ is defined in r.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): r.1.03.  In the present case, Mr Alfred Sankoh, who is an Australian citizen, is the relevant Australian relative.

10. For the reasons below, the visa applicants were orphan relatives of an Australian relative at the time of application and would be at the time of decision except that they have turned 18. Therefore the Tribunal finds that cl.117.211(a) is met, and cl.117.221(b) is met.

    Age – r.1.14(a)(i)

11. Regulation 1.14(a)(i) requires that the visa applicants have not turned 18. On the Tribunal file there are copies of both the applicants’ birth certificates. These state Ibrahim’s  date of birth as 10 August 1995 and Dauda’s date of birth as 25 June 1994 and Ibrahim’s birthday as 10 August 1995. At the hearing the Dauda stated he is now aged 21 and Ibrahim stated he is now aged 20 years which is consistent with the dates provided. The Tribunal is satisfied that the visa applicants had not turned 18 at the time of application but are over the age of 18 at the time of decision Accordingly r.1.14(a)(i) was met at the time of application and not at the time of decision , only because the visa applicants have turned 18..

    Spouse or de facto partner – r.1.14(a)(ii)

12. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The review applicant and each of the visa applicants gave evidence that they are not married or in a de facto relationship. The Tribunal is satisfied that the visa applicants are not married or in a de facto relationship.  Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

13. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

14. There is documentary evidence on the Department file the visa applicants are the sons of the review applicants sister and brother-in-law.  Accordingly they are his nephews and are relatives within the meaning of r.1.03, of the review applicant who is an Australian citizen. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.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 review applicant submitted death certificates for the visa applicant’s father, Bundah Conteh stating he died on 3 February 1999 and for their mother, Salima Ya Bunda Sankoh who died on 26 January 2008.  At the hearing the review applicant confirmed these dates of death.  The visa applicants could recall the year in which each of the parents died. The Tribunal is satisfied both the parents of the visa applicants are deceased.

17. The review applicant said that when he left Sierra Leone to study in Holland his sister was already sick and on his return she was seriously ill.  At that time she was separated from the father of the visa applicants and was in a relationship with another man, who was a local medicine man.  When he returned from Holland she asked him to take care of the boys as he was then the male, the head of the family. He said she was very concerned that they be educated as she had not had any education and believed this was essential for them. The visa applicants live with an aunt, Fatmata Sankoh. The review applicant has financially supported them.

18. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

19. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. There is a letter on the Department file from Ms Fatmata Sankoh, the aunt of the visa applicant’s stating she consents to the visa applicant’s coming to live with the review applicant as she considers it would be in their best interests.  The visa applicants told the Tribunal they wished to come to Australia. The Tribunal is satisfied there is no compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicants. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

20. Given the findings above, cl.117.211 is met.

21. The Tribunal finds that the visa applicants do not continue to satisfy the criterion in cl.117.211, but only because the visa applicants have turned 18. It follows that cl.117.221 is met in respect of both applicants.

22. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

23. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and second named visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

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

    ·cl.117.221 of Schedule 2 to the Regulations.

    Rieteke Chenoweth
    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.