2200040 (MIGRATION) - [2023] AATA 4406

2200040 (MIGRATION) [2023] AATA 4406 (18 DECEMBER 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Alexandra Elisabeth Marie Oliver (MARN: 1790427)
CASE NUMBER:  2200040
MEMBER:Maxina Martellotta
DATE:18 December 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 18 December 2023 at 1:21pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – relationship – uncle and nephews – combined hearing of separate reviews for visa applicant and brother – parents died when visa applicants young and visa applicants cared for and later formally adopted by review applicant – application made shortly before visa applicant turned 18 – refusal to take DNA test for personal reasons considered with other evidence – documentation and declarations by family members, friends and community leader – consistent and compelling evidence – best interests of visa applicants – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CA(1)(b), (2), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04(1), 1.14(a)(iii), (b), 1.14A(2), Schedule 2, cls 117.111, 117.211(b), 117.221(b)
CASES
EC v MIMIA [2004] FCA 978
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 26 October 2021 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 11 October 2019. 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…

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 2200040 (MIGRATION)

Details

AGLC: 2200040 (MIGRATION) [2023] AATA 4406
Case: [2023] AATA 4406
Decision Date: 18 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a Child (Migrant) (Class AH) visa application, Subclass 117 (Orphan Relative), made by a young person and reviewed a refusal to grant the visa. The review applicant, who is the paternal uncle of the visa applicant and his sibling, sought to have the visa granted. The visa applicant’s parents died when he was young, and he and his sibling were subsequently cared for and formally adopted by the review applicant and his wife. The application was lodged shortly before the visa applicant turned 18.

The primary legal issue before the Tribunal was whether the visa applicant met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. This required determining if the visa applicant was a relative of an Australian relative, if both parents were deceased, permanently incapacitated, or of unknown whereabouts, and if granting the visa would be in the best interests of the visa applicant. The Tribunal also considered whether the visa applicant continued to satisfy these criteria, or did not do so only because he had turned 18, as per clause 117.221.

The Tribunal reasoned that while the visa applicant had refused to undergo a DNA test for personal reasons, this refusal was to be considered alongside other compelling evidence. The evidence presented included documentation and declarations from family members, friends, and a community leader, which consistently and compellingly supported the visa applicant's claim of being an orphan relative. The Tribunal found that the circumstances demonstrated that the visa applicant could not be cared for by either parent and that there was no compelling reason to believe that granting the visa would not be in his best interests.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister. The Tribunal directed that the visa applicant be considered to meet the criteria under 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.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. As noted, ‘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. The review applicant provided the following evidence which provides an overview of the circumstances which led to the visa application being lodged:a)He is the paternal uncle of [the visa applicant] and of [the visa applicant’s sibling].b)The biological father of his nephews was his older brother [Mr A].c)His brother did not always meet with the approval of their parents as he renounced his Catholic faith.d)His brother was married (through customary rites) to [Ms B].e)His brother and [Ms B] had two sons including the visa applicant.f)He (the review applicant) was living and studying in Nigeria at the time of his brother’s wedding and when each of his nephews was born.g)He is aware that when his eldest nephew [the applicant] was born, [Mr A] had suggested that he suspected his wife had been unfaithful and perhaps [the applicant] was not his son. No one really understood why [Mr A] was making these suggestions. He was working away from home at various times and perhaps he started to become jealous. Ultimately there was a family discussion, and it was agreed that there was no basis to his suspicion as [Ms B] was always living within the family home. By the time [the applicant] was born the issue had been resolved and no one ever questioned his paternity.h)In 2003 it became obvious to the family and local community that [Mr A and Ms B] were unwell. They were diagnosed as HIV positive, as they became increasingly unwell their children were cared for by the family but mainly by the review applicant’s mother.i)[Mr A and Ms B] both died in 2004. Their children continued to live with their paternal grandparents. The review applicant as the eldest surviving son took on a ‘father’ role for his nephews.j)When he married in 2008, the review applicant found work in [Region]. His wife remained in Nigeria and both nephews moved into the review applicant’s family home and lived with his wife. The review applicant and his wife decided to apply for formal adoption of the nephews and orders were made in 2012. k)This was the arrangement until the review applicant and his wife were granted visas to work and live in Australia. He continued to financially support his nephews but could not afford for them to make the move to Australia. He applied for the children to be granted visitor visas but that was refused, so [the children] returned to live with their grandmother and grandfather.l)In 2018 the visa applicant’s grandmother died. The care needs of his nephews became accentuated as their grandfather was aging and there was limited capacity for the review applicant’s siblings to take care of them.

Decision

Reasons for decision

Given these findings, 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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