1935686 (Migration) - [2023] AATA 4876

1935686 (Migration) [2023] AATA 4876 (7 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1935686
MEMBER:Maxina Martellotta
DATE:7 August 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the 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.

Statement made on 07 August 2023 at 10:32am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – half-brother – no parental care – father deceased – mother missing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.221
CASES
Claridge v MIBP [2013] FCCA 1953
Mercado v MIAC [2007] FMCA 1216
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 12 November 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth).
The visa applicant applied for the visa on 12 October 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, which requires that, at the time of application, the visa applicant meets the definition of orphan relative as defined in reg 1.14:
Reg 1.14 Orphan 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.
The criterion in cl 117.211 must continue to be satisfied at the time of decision, or it must be the case that the only reason the criterion is not satisfied is because the visa applicant has turned 18 (cl 117.221).
In this matter, the delegate refused…

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 1935686 (Migration)

Details

AGLC: 1935686 (Migration) [2023] AATA 4876
Case: [2023] AATA 4876
Decision Date: 7 August 2023

CaseChat Overview and Summary

This matter concerns a review of a decision regarding a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The review applicant is the Australian relative of the visa applicant. The central dispute revolves around whether the visa applicant meets the definition of an "orphan relative" as defined by the Migration Regulations 1994. The decision was made by Maxina Martellotta, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the visa applicant qualified as an orphan relative of an Australian relative. This required assessing whether the applicant met the criteria outlined in clause 117.211 and clause 117.221 of Schedule 2 to the Regulations, which in turn necessitated an examination of the definition of "orphan relative" under regulation 1.14. Specifically, the Tribunal had to consider if the applicant had not turned 18, did not have a spouse or de facto partner, was a relative of the Australian citizen, and crucially, could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts.

The Tribunal found that the visa applicant met the definition of an orphan relative of an Australian relative at the time of application and continued to meet this criterion at the time of the decision, satisfying clause 117.211(a). It was established that the applicant had not turned 18 at the time of application, although this criterion was not met at the time of the decision. The Tribunal was satisfied that the applicant did not have a spouse or de facto partner, and this condition remained met. The Tribunal also accepted that the applicant was a relative of the Australian review applicant. However, the specific circumstances regarding the parents' whereabouts and capacity to care for the child were not fully detailed in the provided text, leading to the decision to remit the matter.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), to the Minister for reconsideration. The remittal was made with the direction that the visa applicant meets the criteria specified in clause 117.211 and clause 117.221 of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant meets the definition of orphan relative. The specific issue that arises from the delegate’s decision is whether the applicant cannot be cared for by either parent because each of them are either dead, permanently incapacitated or of unknown whereabouts.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 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 review applicant] is the relevant Australian relative. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. According to documents provided in support of his visa application, the visa applicant was born in [month and year].[1] The visa application was made in October 2017. The Tribunal is satisfied and finds that at the time of application, the visa applicant was [age] years of age. At the date of decision, the applicant is [age] years of age.[1] The Tribunal notes that the dates are based on the Gregorian calendar and not the Ethiopian Ge’ez calendar Reg 1.14(a)(i) was met at the time of application but is not met at the time of decision.Spouse or de facto partner – reg 1.14(a)(ii) Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. At hearing the review applicant and the visa applicant stated in their evidence that the visa applicant has never had a spouse or defacto partner. The visa applicant told the Tribunal that he has never been in such a relationship and is single. This evidence is consistent with claims made by the visa applicant in his visa application. The Tribunal is satisfied that reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.Relative – reg 1.14(a)(iii)

Decision

Reasons for decision

For these reasons, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the 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.Maxina MartellottaMemberATTACHMENT – 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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