1924721 (Migration) - [2023] AATA 3859

1924721 (Migration) [2023] AATA 3859 (6 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Tania Mykyta (MARN: 1575391)
CASE NUMBER:  1924721
MEMBER:Stephen Conwell
DATE:6 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 06 November 2023 at 8:05pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) – parents deceased, incapacitated or of unknown whereabouts – brother and brother-in-law presumed killed in conflict zones and sister died of illness – no documentary evidence provided or inquiries made with missing persons services – current circumstances of applicants in various countries – applicants’ responsibility to supply facts in necessary detail – one applicant 18 at time of application and one other application withdrawn – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CA, 65, 348
Migration Regulations 1994 (Cth), rr 1.03, 1.14(1)(a)(i), (iii), (b), 1.14A(2), Schedule 2, cls 117.111, 117.211(a), 117.221
CASE
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 Home Affairs on 20 July 2019 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants (the applicants) applied for the visas on 14 February 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 (Cth) (the Regulations). Relevantly to this case, they include cl.117.211.
In six separate decisions by the same delegate, each applicant was refused the grant a visa because the delegate was not satisfied that the applicants were orphan relatives of the sponsor, as required by cl.117.211 of Schedule 2 to the Regulations.
The review applicant (the sponsor) provided to the Tribunal copies of the delegate’s decisions in respect of each applicant for the purposes of the review.
The sponsor was represented in relation to the review by his registered migration agent (representative).
Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video and telephone hearing via Microsoft Teams. The parties raised no objections as to conducting the hearing in this manner.
The sponsor participated in the hearing by video on 31 October 2023 to give evidence and present arguments. The Tribunal also received…

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 1924721 (Migration)

Details

AGLC: 1924721 (Migration) [2023] AATA 3859
Case: [2023] AATA 3859
Decision Date: 6 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the claims of several applicants seeking Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative). The dispute centred on whether the applicants qualified as orphan relatives of an Australian sponsor, a requirement for this visa subclass. The applicants claimed their parents were deceased or of unknown whereabouts due to conflict, and one sister had died of illness, but failed to provide documentary evidence or make inquiries with missing persons services.

The primary legal issue before the Tribunal was to determine if the remaining applicants met the criteria for an orphan relative under Regulation 1.14 of the Migration Regulations 1994. This involved assessing whether the applicants were under 18, had no partner, were a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, whether they could not be cared for by either parent because each parent was dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered the requirement that there be no compelling reason to believe a visa grant would not be in the applicant's best interests.

The Tribunal reasoned that the applicants bore the responsibility to supply facts in necessary detail to satisfy the visa criteria. Despite claims regarding the death or disappearance of parents and a sister, the applicants had not provided sufficient documentary evidence or made inquiries with relevant services to substantiate these claims. Furthermore, one applicant had turned 18 at the time of the decision, and another application had been withdrawn. As the applicants failed to meet all aspects of the definition of an "orphan relative," the Tribunal concluded that the criteria for the grant of a Subclass 117 visa were not met.

Consequently, the Tribunal affirmed the decisions not to grant the Child (Migrant) (Class AH) visas to the applicants.

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 remaining applicants are the orphaned relatives of the sponsor. The Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record pertaining to each visa applicant, visa application forms and supporting documents, written statements by the sponsor and third parties, as well as the oral testimonies given at the hearing.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 reg 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): reg 1.03. In the present case, [the sponsor] is the relevant Australian relative. Both Subclasses 117 and 837 require, with limited exception, that at the time of application and decision the applicant is the ‘orphan relative’ of an Australian relative as defined in r.1.14. An applicant is an orphan relative if he or she:·is a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; ·has not turned 18;·does not have a partner;·cannot be cared for by either parent[1] because each of them is either dead, permanently incapacitated or of unknown whereabouts; and·there is no compelling reason to believe that the visa grant would not be in the applicant’s best interests.[1] ‘Parent’ is defined in s.5(1) of the Act. See also r.1.14A(1) of the Regulations (post 1 July 2009) which specifies that a reference to ‘parent’ includes ‘step-parent’. At the time of decision the applicant must continue to satisfy the criterion in cl.117.211 (orphan relative or adopted), or not continue to satisfy that criterion only because the applicant has turned 18. The Tribunal notes that in meeting the criteria all aspects of the definition must be considered and met. If the applicant does not meet one aspect of the definition then the applicant cannot meet the criteria for r.1.14.Age – r.1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. All of the visa applications were lodged on 14 February 2017. The applicants’ dates of birth are set out below. Visa Applicant Date of Birth·[the first visa applicant] …. [Date]·[the third visa applicant] …. Application withdrawn·[the second visa applicant] …. [Date]·[the third visa applicant] …. [Date]·[the fifth visa applicant] …. [Date]·[the sixth visa applicant] …. [Date]

Decision

Reasons for decision

For these reasons, the criteria for the grant of a Subclass 117 visa are not met by any of the applicants. 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.Stephen ConwellMemberATTACHMENT – 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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