2113489 (Migration) - [2024] AATA 2298

2113489 (Migration) [2024] AATA 2298 (6 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Tania Irena Mykyta
CASE NUMBER: 2113489

MEMBER:Justine Clarke
DATE:6 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:
· cl 117.211 of Schedule 2 to the Regulations;
· cl 117.221 of Schedule 2 to the Regulations; and

With respect to the first, second and third-listed visa applicants, there is a further direction that they each meet:
· Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations.

Statement made on 06 June 2024 at 4:53pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – age requirement – birth certificates in Somalia – whether parents were deceased – bogus document – counterfeit school records – compelling and compassionate circumstances – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221, 117.223; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.14
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
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 a combined application for review of four separate decisions made on 29 July 2021 by a delegate of the Minister for Home Affairs to refuse to grant each of the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
At the time of this decision, the review applicant, [named] is [an age]-year-old Australian citizen.[1] It is claimed that she is related to each of the visa applicants.
[1] At the Tribunal hearing, the review applicant gave credible oral evidence that she is an Australian citizen. The Tribunal accepts this evidence.
On 3 July 2017,[2] the visa applicants—[Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D]—applied for Child (Migrant) (Class AH) visas. The review applicant is the sponsor for each visa applicant.
[2] This is the date of application for the visas given in each of the delegate’s refusal decisions.
At the time of application for the visas, 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…

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 2113489 (Migration)

Details

AGLC: 2113489 (Migration) [2024] AATA 2298
Case: [2024] AATA 2298
Decision Date: 6 June 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision regarding a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The review applicant sought to sponsor several visa applicants as orphan relatives of an Australian relative. The dispute centred on whether the visa applicants met the age requirements and the definition of an orphan relative, with issues arising concerning the authenticity of supporting documents, including birth certificates from Somalia and school records. The case was heard by Justine Clarke.

The primary legal issues before the Tribunal were whether the visa applicants met the criteria for an orphan relative under subclauses 117.211 and 117.221 of the Migration Regulations 1994 at the time of application and at the time of the decision, respectively. This involved determining if they were indeed orphans of an Australian relative and if they had attained the age of 18. A further significant issue was the validity and procedural implications of a non-disclosure certificate issued under section 376 of the Migration Act 1958, which purported to prevent the disclosure of certain information on public interest grounds.

The Tribunal found that, at the time of application, the visa applicants met the orphan relative criterion under subclause 117.211(a). It also found that one applicant continued to meet subclause 117.221(a) at the time of the decision, while the other three met subclause 117.221(b) as they had not turned 18 at the time of the decision. However, the Tribunal noted an oversight where the presiding Member failed to provide the review applicant with a copy of the section 376 non-disclosure certificate and discuss its implications, thereby potentially impacting procedural fairness. The Tribunal considered the certificate to be valid but did not believe the information it covered triggered obligations under sections 359A or 359AA of the Act.

Due to the procedural oversight concerning the section 376 certificate, the Tribunal concluded that the matter should be remitted for reconsideration. This would allow for proper procedural fairness to be accorded to the review applicant regarding the certificate and any associated information.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 In assessing and deciding the various issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file as well as the oral evidence given at the hearing. The Tribunal notes that it has a greater amount of evidence in respect of the issues for determination than what had been before the delegate. For example, in this review, the review applicant submitted a document titled ‘statement of facts, issues and contentions’; a statutory declaration made by [Leader A] on 15 March 2024; a family tree and a timeline of events.The non-disclosure certificate said to have been made pursuant to s 376 of the Act The Tribunal’s file relevantly contains a non-disclosure certificate said to be made pursuant to s 376 of the Act. This certificate, which is dated 25 May 2022, relevantly states:Public Interest foliosI notify the Administrative Appeals Tribunal that s 376 applies to the documents(s)/information listed below and certify that disclosure of this material would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods: ·Department Digital file [number] – [Visa Applicant A]:o[9006611] [number] folios 34 to 41o[9006613] [number] folios 112 to 135·Department Digital file [number] – [Visa Applicant B]:o[9006618] [number] folios 36 to 38o[9006618] [number] folios 40 to 43 o[9006619] [number] folios 111 to 135·Department Digital file [number] – [Visa Applicant C]:o[9006641] [number] folio 35o[9006642] [number] folios 38 to 42o[9006643] [number] folios 108 to 128·Department Digital file [number] – [Visa Applicant D]:o[9006647] [number] folios 34 to 36o[9006648] [number] folios 41 to 42o[9006649] [number] folios 106 to 131. With respect to this certificate, the Tribunal should:·assess the validity of the certificate; ·accord procedural fairness, including disclosing the existence of the certificate to the review applicant, providing her with a copy of the certificate and affording her with an opportunity to make submissions about the validity or otherwise of the certificate because if the Tribunal determines that the certificate is not valid, it may disclose the documents or information to the applicant; ·if the Tribunal considers the certificate to be validly made, afford the applicant an opportunity to seek a favourable exercise of the discretion in s 376(3)(b), that is, the Tribunal’s discretion to disclose, to the review applicant, the information subject to the s 376 certificate; and·comply with the procedural code, including complying with s 359A or s 359AA, that is, giving the review applicant clear particulars of information that is adverse to the case and inviting her to comment on or respond to the information.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Due to an oversight, the presiding Member failed to give the review applicant a copy of the certificate at the hearing and to discuss it with her. The Tribunal records here that the certificate exists, that the Tribunal considers it to be valid and that the Tribunal does not consider the information the subject of the certificate to raise obligations for the Tribunal pursuant to s 359A or s 359AA. Consideration of cl 117.211 and cl 117.221 The first issue for determination is whether, at the time that the applications were made for the visas on 3 July 2017, [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D] each met cl 117.211 and at the time of this decision they each meet cl 117.221 as well. In the document titled ‘statement of facts, issues and contentions’, that was filed in this review, it was noted that:[The review applicant] provided three statements in support of her sponsorship of the orphan relative visa applications for [Visa Applicant A], [Visa Applicant C], [Visa Applicant B] and [Visa Applicant D]. Her statements are:· Statement made on 27 June 2017. This statement was not a statutory declaration.· Statutory declaration made on 12 September 2019.· Statutory declaration made on 26 February 2021. The Tribunal has reviewed these documents and refers to them further below.Are [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D] each an orphan relative of an Australian relative? For the reasons below, the Tribunal finds that:·at the time of application on 3 July 2017, [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D] were each an orphan relative of an Australian relative and thus met cl 117.211(a); ·at the time of this decision, [Visa Applicant D] is an orphan relative of an Australian relative and thus continues to satisfy the criterion in cl 117.211. Therefore, he meets cl 117.221(a); and·at the time of this decision, [Visa Applicant A], [Visa Applicant B] and [Visa Applicant C] do not continue to satisfy the criterion in cl 117.221 only because they have turned 18. Thus, they each meet cl 117.221(b).Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. In the visa applications lodged by [Visa Applicant A], [Visa Applicant B], [Visa Applicant C] and [Visa Applicant D], they gave their dates of birth as being specific dates in the [specified years] respectively. The respective sponsorship forms gave consistent information as to the visa applicants’ dates of birth. The review applicant reiterated that the visa applicants were born in these years in her signed statement of 27 June 2017.[3][3] In this signed statement, [Visa Applicant B] was the only visa applicant for whom the review applicant gave the full date of birth. Each visa applicant submitted to the Department copies of a number of documents to corroborate their claims that, at the time of application for the visas, they were under the age of 18 years.