1508660 (Migration) - [2015] AATA 3484

1508660 (Migration) [2015] AATA 3484 (14 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Aisha Ahmed Mustefa
VISA APPLICANTS:  Ms Sumeya Mohamed
Mr Imran Mohamed
Ms Kedia Mohamed
CASE NUMBER:  1508660
DIBP REFERENCE(S):  OSF2012/050298
MEMBER:Mary Cameron
DATE:14 October 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 14 October 2015 at 3:06pm
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 Immigration on 25 June 2015 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 4 January 2013. 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 (the Regulations). Relevantly to this case, they include cl.117.211 and cl.117.221.
The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicants were the orphan relatives, as defined, of the review applicant.
The review applicant applied to the Tribunal for the review of the delegate’s decision.
The review applicant appeared before the Tribunal on 9 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband Abdurahman Dawd Mohammed; from Abdu Hassen Mohamed who is a family friend of the review applicant, and from the review applicant’s sister Nazira Ahmed by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicants are the orphan relatives of the review applicant.
The evidence of the review applicant is that she is the aunt of the visa applicants.
The review applicant’s evidence is that she was born in November 1980 in Ethiopia and migrated to Australia ten years ago under the sponsorship of her husband Abdurahman Dawd Mohammed. She lives with him and their three children in Cranbourne. Prior to migrating to Australia she lived in Addis Ababa with her parents and siblings.
The review applicant told the Tribunal that she has four brothers and three sisters including one sister, Halima Ahmed, who has disappeared. Halima Ahmed is the mother of the visa applicants. All of her other siblings live in…

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 1508660 (Migration)

Details

AGLC: 1508660 (Migration) [2015] AATA 3484
Case: [2015] AATA 3484
Decision Date: 14 October 2015

CaseChat Overview and Summary

The case, 1508660, involves the review of a decision by the Migration Review Tribunal regarding the application for a visa by three children, Sumeya Mohamed, Imran Mohamed, and Kedija Mohamed, who are alleged to be the orphans of their maternal aunt, the review applicant. The Tribunal was tasked with determining whether the children meet the criteria for orphan relative visas under the Migration Regulations 1994. The review applicant, who migrated to Australia and lives with her husband and children, claims that the children live with their grandparents in Ethiopia and are cared for by their uncle, with financial support from her. The children's father had died under mysterious circumstances, and their mother has disappeared.

The primary legal issue before the Tribunal was whether the visa applicants qualified as orphan relatives under the Migration Regulations 1994. The criteria for this classification include the applicants being under 18 years of age, unmarried, related to the review applicant, and unable to be cared for by either parent. The Tribunal had to assess the evidence provided by the review applicant and determine if the children were indeed orphans and if it was in their best interests to be granted a visa.

The Tribunal concluded that the criteria for granting a Subclass 117 visa, specifically for orphan relatives, were not satisfied. The evidence did not support the claim that the children were unable to be cared for by either parent, as they were living with their grandparents and were being cared for by their uncle. Additionally, the Tribunal found that there was no compelling reason to believe that granting the visa would be in the best interests of the applicants. Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

The Tribunal's decision was based on the lack of sufficient evidence to prove that the children met the orphan relative criteria and the absence of compelling reasons to consider the visa grants to be in the children's best interests. The Tribunal's findings and reasoning led to the affirmation of the original decision denying the visa applications.

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 issue in the present case is whether the visa applicants are the orphan relatives of the review applicant. The evidence of the review applicant is that she is the aunt of the visa applicants. The review applicant’s evidence is that she was born in November 1980 in Ethiopia and migrated to Australia ten years ago under the sponsorship of her husband Abdurahman Dawd Mohammed. She lives with him and their three children in Cranbourne. Prior to migrating to Australia she lived in Addis Ababa with her parents and siblings. The review applicant told the Tribunal that she has four brothers and three sisters including one sister, Halima Ahmed, who has disappeared. Halima Ahmed is the mother of the visa applicants. All of her other siblings live in Addis Ababa. The review applicant told the Tribunal that the visa applicants, her nephew and nieces, are Sumeya Mohamed who is twelve years old, Imran Mohamed who is ten and Kedija Mohamed who is seven. The review applicant told the Tribunal that the children live with her parents (their grandparents) and are cared for by her brother Abdul. She advised the Tribunal that at the time of the Tribunal hearing her brother was away in the provinces, and could not be contacted by the Tribunal, and the visa applicants were staying during his absence with her sister Nazira. The review applicant told the Tribunal that she supports the visa applicants financially, mostly by transferring money through agents to her brother. She is in regular contact with them by telephone. In response to the Tribunal’s questions the review applicant told the Tribunal that the visa applicant’s father Mohamed Ebrahim Awel died suddenly on 13 January 2012. The family does not know what caused his death, but he was at work pouring concrete when he collapsed and died. He was not taken to hospital, and the people who gathered around him when it happened took his body to the family home. Everyone was shocked. There was a gathering in grief and those people who attended the gathering washed the body and took it to the mosque and the body was buried the same day. According to the review applicant’s evidence this was a very shocking experience for her sister Halima who had a difficult personal history. This was because her husband Mohamed had come to Addis Ababa from Walo Province and he and Halima fell in love. This caused the review applicant’s family to become upset, and to refuse to allow Mohamed to come to their place. This was because the older sister of Halima was not yet married and it is unacceptable in the culture of the family for a younger sister to marry before an older sister. However Halima insisted that she must marry him, and her parents made her choose between the family and Mohamed. She chose to go with him and left the family home. This was bad for the family. After one year Halima had a baby and a family mediation was conducted with community elders and Halima was reconciled with her family.

Decision

Reasons for decision

The Tribunal finds that the criteria for the grant of a Subclass 117 visas are not met. In respect of the other visa subclasses there is no material which suggests that the visa applicants meet prescribed criteria for the visa sought and no claims have been advanced in respect of the other subclasses.DECISION The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Mary CameronMemberATTACHMENT – 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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