2004856 (Migration) - [2022] AATA 2532

2004856 (Migration) [2022] AATA 2532 (22 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004856
HOME AFFAIRS REFERENCE(S):          OSF2017/053321
MEMBER:David Crawshay
DATE:22 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 22 April 2022 at 2:37pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – legal permission for child’s removal – consent from the visa applicant’s biological father – whether the biological father is alive – inquiries with the Australian Red Cross’ Restoring Family Links Service – no other inquiries made – common law presumption of death – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.226; Schedule 4, PIC 4017
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 9 January 2020 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 applied for the visas on 16 June 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.226, which requires a visa applicant to satisfy Public Interest Criterion (“PIC”) 4017.
The delegate refused to grant the visas on the basis that cl.101.226 was not met because the delegate was not satisfied that the visa applicants met PIC 4017. The delegate found that
The review applicant appeared before the Tribunal on 20 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
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 visa applicants satisfy PIC 4017, which is required by cl.101.226 where the visa applicants have not turned 18 at the time of decision. As at the time of this decision, the visa applicants have not yet turned 18.
Public Interest Criterion 4017 provides as follows:
The Minister is satisfied of 1 of the following:
(a)the law of the applicant’s home country permits the removal of the applicant;
(b)each person who can lawfully determine where the applicant is to live consents to the grant of the visa;
(c)the grant of the visa would…

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 2004856 (Migration)

Details

AGLC: 2004856 (Migration) [2022] AATA 2532
Case: [2022] AATA 2532
Decision Date: 22 April 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision concerning applications for Child (Migrant) (Class AH) visas, specifically Subclass 101 (Child) visas. The dispute centred on whether the visa applicants, who were under 18 at the time of the decision, satisfied Public Interest Criterion (PIC) 4017, which requires either the law of the applicant's home country to permit their removal, or for every person who can lawfully determine where the applicant is to live to consent to the visa grant. The applicants sought to satisfy PIC 4017(b) by demonstrating that the consent of the visa applicants' biological father, who was presumed to be alive, had been obtained.

The primary legal issue before the Tribunal was whether the visa applicants met the requirements of PIC 4017(b). This involved determining whether the biological father, who was missing, was alive and whether sufficient inquiries had been made to ascertain his consent or to establish that he was deceased. The Tribunal also considered whether the applicants satisfied PIC 4017(a) or (c), finding no evidence to support these criteria.

The Tribunal's reasoning focused on the adequacy of the inquiries made regarding the biological father's whereabouts and status. While a Letter of Involvement from the Australian Red Cross' Restoring Family Links Service indicated that the father had last been in contact with his own father in 2012 and was last seen in an IDP camp in 2010, the Red Cross stated that no further searches were possible and the case would be closed. The Tribunal noted that the common law presumption of death had not been overcome by the inquiries made. Consequently, the Tribunal was not satisfied that the biological father's consent had been obtained, nor that he was deceased.

The Tribunal affirmed the decisions not to grant the visa applicants the Child (Migrant) (Class AH) visas, as the criteria, particularly PIC 4017(b), were not met.

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 visa applicants satisfy PIC 4017, which is required by cl.101.226 where the visa applicants have not turned 18 at the time of decision. As at the time of this decision, the visa applicants have not yet turned 18. Public Interest Criterion 4017 provides as follows:The Minister is satisfied of 1 of the following:(a)the law of the applicant’s home country permits the removal of the applicant;(b)each person who can lawfully determine where the applicant is to live consents to the grant of the visa;(c)the grant of the visa would be consistent with any Australian child order in force in relation to the applicant. There is no evidence before the Tribunal that the law of the visa applicant’s home country permits their removal. The Tribunal is not satisfied that the visa applicants satisfy Item 4017(a). There is no evidence before the Tribunal that the grant of the visa would be consistent with any Australian child order in force in relation to the visa applicants. The Tribunal is not satisfied that the visa applicants satisfy Item 4017(c). The visa applicants therefore seek to satisfy Item 4017(b). The Tribunal notes the presence of a letter from the Australian Red Cross’ Restoring Family Links Service dated [in] April 2018 (Letter of Involvement), which relevantly stated as follows:Australian Red Cross' Restoring Family Links has assisted the enquirer as follows:Name of Enquirer: [Review applicant]Name of Sought Person and Relationship to Enquirer: [Mr A] (also known as [Alias 1]) is husband to the enquirerDate: 3/01/2011Action: Case considered for Tracing with the Australian Red Cross. The enquirer is searching for her missing husband in Sri Lanka.Date: 7/06/2011Action: Tracing request unable to be opened at this stage as it does not meet the criteria of the International Committee of the Red Cross (ICRC) in Colombo, Sri Lanka who are only accepting cases in relation to the 2009 conflict.Date: 06/10/2017Action: Enquirer reapproached the Australian Red Cross as husband is still missing. ICRC Sri Lanka's guidelines have changed and the missing case now fits the criteria. Tracing request open with the Australian Red Cross and submitted to ICRC Colombo for consideration.Date: 13/03/2018Action: ICRC Colombo relay that their searches have resulted in the following: the sought person was visited whilst in LTTE custody by the ICRC from [November] 2006 – [October] 2007. The ICRC confirmed that the sought person was still detained on 27/05/08. Further information received identified the sought person was in [a named] IDP Camp in 2010. ICRC Colombo visited the sought persons' father in early 2018 in Trincomalee, Sri Lanka. He advised the last contact he had with the sought person was in 2012. He has no contact with him now, no contact details for him and no information on his whereabouts.Date: 10/04/2018Action: The above information is relayed to the enquirer. An email is sent to ICRC Colombo to request if any further searches can be done or if the case is to be closed.Date: 11/04/2018Action: Email received from ICRC Colombo stating that no further searches are possible and case will now need to be closed on their side.[emphasis in original]

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class AH (Subclasses 102 and 117), being Adoption and Orphan Relative respectively.DECISION The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.David CrawshayMember

Ratio Decidendi

Legal Principle Established

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