1924721 (Migration)
[2023] AATA 3859
•6 November 2023
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responsibility to supply facts in necessary detail – one applicant 18 at time of application and one other application withdrawn – decision under review affirmedLEGISLATION
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), 117.221CASE
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 oral evidence via video from the applicants, [the second visa applicant], [the fourth visa applicant], [the fifth visa applicant], and [the sixth visa applicant] and from a witness, [Mr A]. The hearing was conducted with the assistance of an interpreter in the Somali and English languages. The representative and attended the Tribunal hearing by video. The interpreter attended the Tribunal hearing by telephone.
On 31 October 2023 the sponsor submitted a completed Form MR10 to the Tribunal expressly withdrawing the review application on behalf of [the third-named visa applicant]. After due consideration, the Tribunal accepts the withdrawal of the third-named visa applicant from the application for review. Accordingly, at the time of this decision, the Tribunal has no jurisdiction with respect to the third-named applicant. The remaining applicants are pursuing their application and the Tribunal has proceeded to determine the remaining applications for review. For the purposes of the Tribunal’s jurisdiction pursuant to s.348 of the Act, the only decisions it is now required to make are with respect to the remaining five applicants.
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]
The Department concluded that at time of application only [the first visa applicant] had turned 18 years of age. The Department appears to accept that none of the other four applicants had turned 18 years old at time of application. There is no evidence to question or contradict [the first visa applicant]’s stated date of birth. Accordingly the Tribunal finds that at time of application [the first visa applicant] was 18 years of age and therefore does not meet Reg 1.14(a)(i).
The Tribunal has no evidence that the applicants’ dates of birth are otherwise than as stated, with the exception of [the sixth applicant] who told the Tribunal that he was born on [Date, Year 1], not in [Year 2] as appears in his decision record. However this discrepancy of birth year is immaterial to this review. In respect of the other applicants, including [the sixth applicant], the Tribunal finds that r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision even though the four other applicants are now over 18 years of age.
Spouse or de facto partner – r.1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence before the Tribunal that any of the applicants has had or currently has a de facto partner or spouse within the meaning of the Act. Accordingly, in respect of each applicant 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 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.
The Australian citizen, Australian permanent resident or eligible New Zealand citizen must be a ‘relative’ of the applicant.[2] Relative is defined in r.1.03 to mean:
·a ‘close relative’ - which is defined by r.1.03 to mean partner, child,[3] parent, brother, sister, or a step-child, step-brother or step-sister; or
·a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
[2] r.1.14(a)(iii).
[3] ‘Child’ is defined in s.5CA of the Act and r.1.14A(2) of the Regulations.
Although the definition of relative includes a person’s partner, r.1.14(a)(ii) precludes an applicant from being an orphan relative if the applicant has a partner.
The sponsor migrated to Australia in 2006. He is an Australian citizen by grant. The sponsor has claimed that he is each applicant’s uncle as:
· his brother, [Mr D] is said to be the father of the applicants, [the first visa applicant] and [the second visa applicant]; and
· his sister, [Ms E] is said to be the mother of the applicants, [the third visa applicant], [the fifth visa applicant] and [the sixth applicant].
Extension of time granted
The sponsor told the Tribunal that he has financially supported the children for several years and would not have done that if they were not his family. He claimed to continue to send 200 USD monthly to The Tribunal granted the sponsor until 4pm, Friday 3 November in which to submit evidence of these monthly remittals. The Tribunal mentioned that if further time was required, a request could be made before expiry of the time extension, which the Tribunal would consider. The sponsor submitted a two page document showing monthly remittances of (presumably USD) 200 he has made to [the third visa applicant] from January 2023 to October 2023. In the covering email the representative notes that the document is but a ‘snapshot’ of the sponsor’s financial support to the applicants which predates the visa refusals. It is pointed out that the payments continue to be made to [the third visa applicant] on behalf of all the applicants, notwithstanding that three of the applicants have relocated.
The Tribunal notes that the parties have claimed to be willing to undergo DNA tests in support of their applications. The Tribunal does query why DNA tests were not undertaken during the application process or alternatively, taken after the refusal decisions made in 2019. Nevertheless, the Tribunal makes no adverse finding on this point, particularly as the delegate makes no finding on regulation 1.14(a)(iii) in respect of any of the applicants. Accordingly the Tribunal makes no findings as to whether any of the applicants are relatives of the sponsor, as defined.
No parental care – r.1.14(b)
Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.
In his written statement dated 9 September 2016 in support of the visa applications, the sponsor claims that:
· he lost contact with his brother, [Mr D] in 2013, when his brother was said to be travelling between Mogadishu and [Town]. He believes his brother is missing, presumed dead - probably killed by Al-Shabaab militia;
· his sister, [Ms E] died of illness on [Date];
· before her death his sister had told him that her husband, [Mr F] had travelled to a refugee camp in [Country 1]. He is unsure of his reason for doing so but speculates that it may have been to see if it would be suitable for his family to move to. [Mr F] never returned to his family and his whereabouts are unknown; he is presumed dead.
At the hearing the Tribunal asked the sponsor if there had been any further developments or news pertaining to the applicants’ parents. He replied in the negative. He said that the information he had received by 2016 regarding the fate of the applicants’ parents was unchanged. In response to the Tribunal’s question, the sponsor advised that he had made no enquiries regarding his brother or brother-in-law with the Red Cross or other Missing Persons tracing services which might have demonstrated that efforts have been made to locate the applicants’ fathers. There is also no substantive evidence to show that the applicants’ fathers are both deceased or that, if alive, that either is permanently incapacitated.
The supporting evidence is comprised of an undated written statement by [Mr G] of [Refugee Camp], [Country 2]. He claims to be a friend of the sponsor who had lived in [Town] in Somalia before moving to the refugee camp. He states that the sponsor had requested that he help the children since his sister had died. The sponsor sent [Mr G] some money for that purpose. [Mr G] further states that he located the children, could see the family resemblance amongst them and with their parents. He states that he was aware that both fathers were missing and probably dead, since attempts to locate them were made. He also states that he recalls when the sponsor’s sister-in-law, [Ms H] had died.
[Mr G]’s statement was before the delegate during the Department’s assessment of the visa applications. The Tribunal notes there is no corroborating evidence to support his claims and he did not appear as a witness at the hearing.
A statutory declaration was provided by [Mr A] of [Country 2] in which he makes similar claims – that he knew the sponsor’s brother, sister and brother-in-law; that he was aware that the sponsor’s sister had died and that his brother and brother-in-law were missing. He states that his last knowledge of the applicants was that they were all living at [Refugee Camp], [Country 2]. [Mr A] appeared as a witness at the hearing..
On balance, the Tribunal finds that whilst the witnesses’ evidence make very similar claims as to the fate of both sets of parents, the Tribunal however notes that again there is no documentary evidence to corroborate such claims nor is there evidence of the sponsor or anyone else making enquiries of organisations such as the Red Cross or other Missing Persons tracing services which might have assisted in obtaining hospital or burial records in respect to the two mothers, or which might have been able to provide further insight into the fate of the applicants’ fathers.
Each of the applicants who attended the hearing confirmed that the sponsor is their uncle, each had vague memories of their parents and family life and each confirmed that none of them are married or engaged to be married. [The second visa applicant] has been living in [Country 3] for the past 12 months. [The fifth visa applicant] is currently in [Country 4] where his visa status is uncertain. [The third visa applicant] is now living and working in [Country 5]. [The sixth visa applicant] remains in a refugee camp in [Country 2]. They each spoke of their hope of being reunited with their siblings and their uncle.
The Tribunal has carefully considered the evidence. It remains concerned that there is no documentary evidence concerning the fate of any of the applicants’ parents. The representative submitted that even before the onset of war and civil unrest official record-keeping was not a feature of life in Somalia. The Tribunal has regard to this point but this does not allay its concerns at the lack of documentary evidence of the parents’ fates as mentioned above.
The Tribunal notes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and the Regulations have been met. Although the concept of ‘onus of proof’ is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.
For the reasons noted above, the Tribunal finds that the applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the applicants are not orphan relatives 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 in respect of all the applicants.
Accordingly, the Tribunal is not satisfied that the applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal therefore is not satisfied that the any of the applicants meet the requirements of Regulation subclause 1.14(b). Consequently, the Tribunal finds that none of the applicants meets the requirements of regulation 1.14(a)(iii) and 1.14(b.
Furthermore, as noted above, the Tribunal finds that at time of application [the first visa applicant] was 18 years of age and therefore also does not meet Reg 1.14(a)(i).
Given the findings above, cl.117.211 is not met by any of the applicants.
The Tribunal finds that the applicants do not continue to satisfy the criterion in cl.117.211, thus it follows that cl.117.221 is not met by any of the applicants.
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 Conwell
MemberATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.14Orphan relative
An 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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