1901382 (Migration) - [2022] AATA 2654

1901382 (Migration) [2022] AATA 2654 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Thomas Peter Drakopoulos (MARN: 9357780)
CASE NUMBER: 1901382

MEMBER:Meredith Jackson
DATE:14 June 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 14 June 2022 at 9:07am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – establishing a biological link – DNA evidence – delay by COVID pandemic conditions – death certificates – no evidence of adoption – one visa applicant has turned 18 – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 117.111, 117.211, 117.221; rr 1.03, 1.14
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
1.This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 15 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The visa applicants applied for the visas on 26 May 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.
3.The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211(a), which requires that the applicant is an orphan relative of an Australian relative of the applicant.
4.The delegate refused to grant the visas because the visa applicants did not meet cl 117.211 of Schedule 2 to the Regulations. The delegate was not satisfied that each visa applicant was an orphan as claimed and was therefore not satisfied that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts and did not meet the requirements of r.1.14(b). The visa applicants sought review via the review applicant who is their sponsor and claimed aunt.
5.The applicant was represented in relation to the review by Mr Thomas P Drakopoulos of Milner Lawyers.
6.On 25 October 2021 the Tribunal invited the review applicant under s 359(2) of the Act to provide information on which she intended to rely on review, stating the information should be received by 8 November 2021. On 26 October she wrote to the Tribunal via her representative seeking an extension to 30 November 2021, which was granted. The email indicated the review applicant was “trying to finalise DNA evidence” but COVID…

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 1901382 (Migration)

Details

AGLC: 1901382 (Migration) [2022] AATA 2654
Case: [2022] AATA 2654
Decision Date: 14 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed decisions not to grant Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), to three applicants. The review applicant, who is an Australian relative, sought to establish that the visa applicants were her deceased brother's children and therefore orphan relatives eligible for the visa. The primary dispute centred on whether the first-named visa applicant met the criteria for an orphan relative, particularly concerning the establishment of a biological link and the status of her parents.

The Tribunal was required to determine whether the first-named visa applicant was an orphan relative of an Australian relative at the time of the visa application and at the time of the Tribunal's decision. This involved assessing whether the applicant met the definition of an orphan relative under regulation 1.14 of the Migration Regulations 1994, which includes requirements that the applicant be under 18, not have a spouse or de facto partner, be a relative of the Australian citizen, and be unable to be cared for by either parent because they are dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered whether there was a compelling reason to believe that granting the visa would not be in the best interests of the applicant.

The Tribunal found that the criteria for the grant of a Subclass 117 visa were not met. While the review applicant stated that the children's parents were deceased due to conflict, and provided some documentation regarding the children's identities and circumstances, crucial evidence, such as DNA testing to establish a biological link between the review applicant and the visa applicants, was not provided. The Tribunal noted that the first-named visa applicant had turned 18 by the time of the decision, which also impacted the assessment against the visa criteria. Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

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 reasons below, the Tribunal finds the first-named visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the first-named 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 does not continue to be met at the time of decision.CONSIDERATION OF CLAIMS AND EVIDENCE The review applicant submitted in support of the review, copies of the delegate’s decisions for the three visa applicants; a statement by the applicant’s representative that the three visa applicants are biological siblings; written emails from the representative seeking more time to provide documents and DNA and other evidence for the Tribunal. Further documents were submitted post-hearing including reports on the younger two of the applicants from the UNHCR. The Tribunal has had regard to information on the Tribunal file; and to Department files for each of the three applicants. The information on the three Department files includes information concerning the identity of the three children; statutory declarations by the review applicant and her husband [named]; a letter from the Office of the [Official A] of [Country 1] attesting to the children as refugees from South Sudan; and a submission by the applicant’s representative dated 30 September 2016, attaching documents in support of the identities and some circumstances of the sponsor, of [Guardian A], the visa applicants’ guardian in [Country 1], and the three visa applicants. This submission also describes circumstances in which the children are claimed to have become orphans; and a claim that the sponsor sends funds regularly for the children’s day to day living expenses; and a statement that DNA evidence will be provided in support of the case. It also addresses the requirements for the grant of an orphan relative visa. At the hearing the Tribunal asked the review applicant to explain the family links between her and the children and whether any DNA testing had been undertaken to establish a biological link between them, given that she claims they are her brother’s children. [The review applicant] stated that the children’s father, her [named brother], is deceased. He was a teacher in [Town 1] for a period of about a year. Because she was in Australia she did not know anything about what he was doing or which year that was. The children’s mother was a housewife and the family were together in [Town 1]. They had been in a refugee camp in [Country 1] at one point, she stated, but went back to Sudan, to [Town 2]. She said when she came to Australia in 2003, her brother was alive. [The review applicant] stated the applicants’ parents were killed after being caught in an ambush near [Town 1]. They were trying to escape conflict in [Town 1] and were together. She stated the children were rescued in an army escort car when after the killings, one of the survivors took the children to Juba and went to the army barracks. There, they were asked who they knew and [Visa Applicant A] had given them the name of their aunt [Guardian A] in [Town 2]. The review applicant stated her own mother is still alive but is in Australia and recently went back to [Country 1] to see the children.

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 decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Meredith JacksonMemberATTACHMENT – 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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