1704843 (Migration) - [2018] AATA 898

1704843 (Migration) [2018] AATA 898 (26 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1704843
MEMBER:Adrienne Millbank
DATE:26 February 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Statement made on 26 February 2018 at 4:14pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Sponsor is an aunt of the visa applicant – Sponsor financially supported the applicant – No evidence of parents' deaths provided – Evidence evasive and unconvincing
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211, 117.221
CASES
EC v MIMIA [2004] FCA 978
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa [in] January 2015. 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. This requires that the applicant is an orphan relative of an Australian relative of the applicant; or is not an orphan relative only because the applicant has been adopted by the Australian relative. ‘Orphan relative’, for the purpose of the visa application, is defined in Regulation 1.14, which is attached to this decision. It includes, at 1.14(b) that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.
The delegate refused to grant the visa because the applicant did not meet cl.117.211(b) of Schedule 2 to the Regulations because he was not satisfied that her parents were both dead or of unknown whereabouts. The delegate in the decision record noted that during checks in Kampala, with the applicant’s primary school, it was assessed that the applicant had provided misleading information about her father: she was listed as still having a father, with a name completely different from the name provided in the visa application. The delegate took into consideration the explanation provided that her enrolment had been done by a former guardian who was not a relative and no longer caring for her. The delegate noted however that the school registration forms had been signed by another person, who described herself as a cousin of the…

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 1704843 (Migration)

Details

AGLC: 1704843 (Migration) [2018] AATA 898
Case: [2018] AATA 898
Decision Date: 26 February 2018

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically Subclass 117 (Orphan relative), before the Tribunal. The applicant claimed to be an orphan relative of the sponsor, who is an Australian citizen and the applicant's aunt. The applicant alleged that her parents died during the conflict in Sudan and that she was subsequently cared for by her maternal grandmother, the sponsor's mother, until the grandmother's death. The sponsor asserted that she had provided financial support to the applicant.

The primary legal issue before the Tribunal was whether the applicant met the definition of an "orphan relative" as defined in the Migration Regulations 1994. This required determining if the applicant was under 18, had no spouse or de facto partner, was a relative of an Australian citizen, and could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also had to consider whether the applicant continued to meet these criteria at the time of the decision.

The Tribunal found that the applicant had not provided sufficient evidence to establish that her parents were deceased. The evidence presented regarding the parents' deaths was described as evasive and unconvincing. Consequently, the Tribunal concluded that the applicant did not satisfy the requirement of being unable to be cared for by either parent. Furthermore, the Tribunal found that the applicant was not an orphan relative of an Australian relative at the time of the application, nor at the time of the decision.

As the criteria for the Subclass 117 visa were not met, the Tribunal affirmed the decision not to grant the visa.

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 parties claim is that the applicant’s parents died in 2008, 2009 or 2010, during conflict in Sudan civil war, and that the applicant was cared for by her maternal grandmother, the sponsor’s mother, until the grandmother died in April 2014. The applicant then moved in with neighbours, but fled, [to] a refugee camp near Kampala, in Uganda, where she has since lived. The sponsor first arrived in Australia on [date] January 2004, on a Refugee [visa]. She came with her then de facto partner and [children]. She has subsequently had [more] children; [from] the partner who accompanied her to Australia, and [from] a subsequent relationship. She obtained Australian citizenship by grant in 2009. The sponsor claims that she has sent money to support the applicant, in the order of $80 a week, on an irregular basis, since 2013, when her mother, the applicant’s grandmother, phoned her from Sudan and asked for her assistance. At the time of decision, the sponsor was living with her [children], [and] has recently taken up a [position] as a [occupation]. She was on Centrelink benefits, while studying for a certificate in [a certain industry], but advised at hearing that she has recently obtained [employment] as a [occupation]. The issue in the present case is whether the applicant is the orphan relative of the sponsor.Is 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 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, the applicant’s sponsor, who migrated to Australia in 2004, claims to be the aunt of the applicant. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met, and continues not to be met, at the time of decision.Relative – r.1.14(a)(iii) 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.

Decision

Reasons for decision

For these reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Adrienne MillbankMemberATTACHMENT – 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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