2119403 (Migration) - [2024] AATA 3541

2119403 (Migration) [2024] AATA 3541 (12 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sulaika Dilruksheen Dhanapala
CASE NUMBER:  2119403
MEMBER:Justin Meyer
DATE:12 April 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; and
·cl 117.221 of Schedule 2 to the Regulations.

Statement made on 12 April 2024 at 3:26pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – aunt and nieces/nephews by different siblings – applicants cannot be cared for by either parent because of death, permanent incapacity or unknown whereabouts – death certificates provided for one sibling and spouse, and no or conflicting documents as to status of others – conditions during civil war – country information – no suggestion that siblings and spouses alive – cultural adoption and financial support – DNA testing – best interests of applicants – applicants now turned 18 – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14, Schedule 2, cls 117.211, 117.221
CASES
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 21 October 2021 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 28 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
The applicant:
(a) is an orphan relative of an Australian relative of the applicant; or
(b) is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).
cl 117.221
The applicant:
(a) continues to satisfy the criterion in clause 117.211; or
(b) does not continue to satisfy that criterion only because the applicant has turned 18
Regulation 1.14 Orphan Relative
Reg. 1.14
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

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 2119403 (Migration)

Details

AGLC: 2119403 (Migration) [2024] AATA 3541
Case: [2024] AATA 3541
Decision Date: 12 April 2024

CaseChat Overview and Summary

This matter concerned applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), before the Migration Review Tribunal. The applicants were nieces and nephews of an Australian relative, an aunt, and the core dispute revolved around whether they met the definition of "orphan relative" under the Migration Regulations 1994. The applicants claimed they could not be cared for by either parent due to death, permanent incapacity, or unknown whereabouts, a situation complicated by conditions during a civil war in their country of origin.

The Tribunal was required to determine if the visa applicants qualified as orphan relatives of an Australian relative at the time of their application and at the time of the decision. Specifically, the Tribunal had to assess whether the applicants met the criteria outlined in clause 117.211 of Schedule 2 to the Regulations, which includes not having turned 18, not having a spouse or de facto partner, and being a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Furthermore, the Tribunal had to consider regulation 1.14(b), which mandates that the applicant cannot be cared for by either parent because each is dead, permanently incapacitated, or of unknown whereabouts, and regulation 1.14(c), concerning the best interests of the applicant.

The Tribunal found that the visa applicants met the criteria for being an orphan relative of an Australian relative at the time of application and continued to meet these criteria at the time of the decision, even though they had since turned 18. This was because clause 117.221 allows for the criterion to be met if the applicant has turned 18 since the application. The Tribunal noted that death certificates were provided for one sibling and their spouse, and there was no suggestion that other siblings and their spouses were alive, particularly in light of the civil war conditions. The Tribunal also found no evidence of the applicants having a spouse or de facto partner.

Consequently, the Tribunal remitted the applications for reconsideration with the direction that the visa applicants meet the criteria for a Subclass 117 (Orphan Relative) visa as per clauses 117.211 and 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 cases is whether the visa applicants are orphan relatives.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], an aunt, 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. The visa applicants provide documentary evidence that they are all presently in the age range of 22 to 24 years 18 and 20, and this has been ascertained through passports and /or birth certificates for all the visa applicants. They were all under 18 at the time of application. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18. Accordingly r.1.14(a)(i) was met at the time of application and continues to be 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. Having questioned the witnesses and examined all materials before me there is no evidence that the visa applicants have a spouse or de facto partner. Accordingly, r.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) 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

Decision

Reasons for decision

There is a certificate on file specifying a need for non-release of confidential information, which bears no relevance to contestable issues in this case and it was not made known. 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; and·cl.117.221 of Schedule 2 to the Regulations.Justin MeyerMemberATTACHMENT – 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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