1824309 (MIGRATION) - [2019] AATA 2897

1824309 (MIGRATION) [2019] AATA 2897 (27 JUNE 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1824309
MEMBER:Jane Marquard
DATE:27 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the first-named visa’s application for a 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 of Schedule 2 to the Regulations; and
· cl.117.221 of Schedule 2 to the Regulations.
The Tribunal affirms the decisions not to grant the second and third named visa applicants Child (Migrant) (Class AH) visas.

Statement made on 27 June 2019 at 3:22pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – cultural surrogacy – second and third named applicants are not relatives of Australian relative – cousins of the Australian relative rather than siblings – disappearance of visa applicant's mother – best interests of the visa applicant – unique and compassionate circumstances – Ministerial intervention referral in relation to second and third named applicants – decision under review remitted for the first named applicant – decision affirmed for the second and third named visa applicants

LEGISLATION
Child Support (Assessment) Act 1988 (Cth)
Family Law Act 1975 (Cth), ss 60, 60HA, 60HB, 60H, 69, 69P, 69Q, 69R, 69U
Migration Act 1958 (Cth), ss 5, 5CA, 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.14, 1.15; Schedule 2, cls 117.211, 117.221

CASES
Claridge v MIBP [2013] FCCA 1953
EC v MIMIA [2004] FCA 978
Mercado v MIAC [2007] FMCA 1216
ND v BM (2003) 175 FLR 355
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

The visa applicants are boys from South Sudan, born in 2006, 2010 and 2012, so currently aged 12, 8 and 6. They currently reside in Kenya.
The review applicant is an Australian citizen. She claimed in her application that the visa applicants are her step brothers and that they have the same father, but different mothers.
This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 June 2018 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 in Nairobi, Kenya, on 22 December 2017. 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 which states that at the time of application the applicant…

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 1824309 (MIGRATION)

Details

AGLC: 1824309 (MIGRATION) [2019] AATA 2897
Case: [2019] AATA 2897
Decision Date: 27 JUNE 2019

CaseChat Overview and Summary

This matter concerned applications for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicants were three children, with the first named applicant being the subject of a referral for reconsideration, while the second and third named applicants sought review of a decision affirming the refusal of their visa applications. The core dispute revolved around whether the applicants met the definition of "orphan relative" in relation to an Australian citizen relative, considering familial relationships and the circumstances of their parents.

The court was required to determine whether the second and third named applicants met the criteria for an Orphan Relative visa, specifically whether they were considered "relatives" of the Australian citizen under the Migration Regulations 1994. This involved interpreting the definition of "relative" and "orphan relative" as set out in the regulations, and assessing whether the applicants' familial connection to the Australian citizen, described as cousins rather than siblings, satisfied the requirements. The court also considered the best interests of the visa applicants and any unique or compassionate circumstances.

The Tribunal found that the second and third named applicants did not meet the definition of a "relative" as required by the Orphan Relative visa criteria, as they were cousins of the Australian citizen, not siblings or other specified close relatives. Consequently, the Tribunal affirmed the decision not to grant these applicants the visa. However, for the first named applicant, the Tribunal remitted the application for reconsideration, directing that the criteria for the Subclass 117 visa, including being an orphan relative and meeting the age requirements, were met. The Tribunal also referred the matter of the second and third named applicants to the Department for potential referral to the Minister under s.351 of the Act, indicating consideration of discretionary powers.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has concluded that in relation to the first named applicant the matter should be remitted for reconsideration, and in relation to the second and third named applicants the decision under review should be affirmed. The Tribunal has considered the second and third named applicants’ cases and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and refers the matter to the Department for referral to the Minister unders.351 of the Act.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has considered the requirements of Regulation 1.14 as follows:Age – r.1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicants have not turned 18. At the time of application, the visa applicants were 11, 7 and 6 years old. Copies of their birth certificates and age assessment certificates were provided. As at the date of decision, they are aged 12, 8 and 6. The Tribunal is satisfied that r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.Spouse or de facto partner – r.1.14(a)(ii) Regulation 1.14(a)(ii) requires that the visa applicants do not have a spouse or de facto partner. The children are young and there is no evidence of spouses or de facto partners. 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) Regulation 1.14(a)(iii) requires the visa applicants 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. [The review applicant] is an Australian citizen and passport holder and is therefore an Australian relative in accordance with r.1.14(a)(iii). The issue of whether the visa applicants are orphan relatives is considered below.Are the visa applicants orphan relatives 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.Is the first named applicant, [Mr C] an orphan relative of an Australian relative?

Decision

Reasons for decision

For the reasons set out above, the criteria for the grant of a Subclass 117 visa are not met in relation to the second and third named applicants. There have been no claims advanced in respect of the other visa subclasses in Class AH.DECISION The Tribunal remits the first named applicant’s application for a 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 of Schedule 2 to the Regulations; and·cl.117.221 of Schedule 2 to the Regulations. The Tribunal affirms the decisions not to grant the second and third name visa applicants Child (Migrant) (Class AH) visas. Jane MarquardMemberATTACHMENT – 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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