2200197 (Migration) - [2024] AATA 616

2200197 (Migration) [2024] AATA 616 (23 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2200197
MEMBER:Maxina Martellotta
DATE:23 February 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the directions that:
· The primary visa applicant [Mr A] meets the following criteria for a Subclass 117 (Orphan Relative) visa:
o cl 117.211 of Schedule 2 to the Regulations; and
o cl 117.221 of Schedule 2 to the Regulations.

· The primary visa applicant [Ms B] meets the following criteria for a Subclass 117 (Orphan Relative) visa:
o cl 117.211 of Schedule 2 to the Regulations; and
o cl 117.221 of Schedule 2 to the Regulations.

Statement made on 23 February 2024 at 9:44am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – paternal aunt of the applicants – results of DNA testing provided – biological parents of the primary visa applicants died in August 2014 – death certificate provided – no parental care – visa applicants have turned 18 – sibling relationship proven – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03,1.14, 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 29 October 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth).
The visa applicants applied for the visas on 5 December 2018. 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…

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 2200197 (Migration)

Details

AGLC: 2200197 (Migration) [2024] AATA 616
Case: [2024] AATA 616
Decision Date: 23 February 2024

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision related to a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicants for the visa were two individuals, Mr. A and Ms. B, who sought to migrate to Australia. The review applicant, Ms. F, is the paternal aunt of Mr. A and Ms. B, and thus the Australian relative in this context.

The primary legal issue before the Tribunal was whether the visa applicants qualified as "orphan relatives" of Ms. F, an Australian citizen, under the Migration Regulations 1994. This required determining if the applicants' biological parents had died, if they had been in the care of their parents, and if they met the age requirements, considering the definition of "orphan relative" and "relative" as provided in the Regulations. The Tribunal also had to consider the impact of the applicants turning 18 on their eligibility.

The Tribunal considered evidence including death certificates confirming the passing of the applicants' biological parents in August 2014 due to the Ebola virus. Ms. F provided evidence of her relationship to the applicants, establishing herself as their paternal aunt, and detailed her ongoing financial support and care for them since their parents' deaths. The Tribunal noted that the applicants had been living with their parents until their deaths and that Ms. F had commenced providing care and support after learning of their difficult circumstances. The Tribunal found that the applicants had not been in parental care at the time of the decision due to their parents' deaths and that the sibling relationship between the applicants had been proven.

The Tribunal concluded that the matters should be remitted for reconsideration. This indicates that while the core elements of the claim were supported by evidence, further assessment or clarification was required before a final decision on the visa could be made.

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 matters should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEAres the visas applicant orphan relatives 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. A ‘half’ relationship arises where two people are related by only one parent. In Mercado v MIAC[1] the question of whether a reference to ‘brother’ excluded or included a ‘half-brother’. The Court accepted the Minister’s submission that there was no apparent policy reason to exclude a half-brother. The reasoning in that decision was adopted in the matter of Claridge v MIBP.[2][1] Mercado v MIAC [2007] FMCA 1216.[2] Claridge v MIBP [2013] FCCA 1953. In the present case, the review applicant [Ms F] is the relevant Australian relative. She claims that she is the half-sister of the father of the primary visa applicants, [Mr A] and [Ms B] – namely, that she is their paternal aunt. At hearing, the review applicant provided the following evidence about the circumstances relevant to the visa applications:a)She is the paternal aunt to the primary visa applicants [Mr A] and [Ms B]. She is the paternal great aunt to the secondary visa applicant [Ms C].b)Her brother is [Mr D]. She and her brother share the same biological father, [Mr G] . c)In 1996 she moved from Liberia to Ghana. She maintained contact with her brother and knew that he had partnered with [Ms E]. She believes that they were married in a traditional ceremony.d)Through her contact with her brother, she was aware that her brother and [Ms E] are the biological parents to two children, [Mr A], born in [year], and [Ms B], born in [year]. The children lived with their parents in Liberia.e)She migrated to Australia in 2006 and in 2012 she returned to Liberia and visited her brother, his wife and two children. This was the first time she personally met [Mr A and Ms B]. They were all living together in a rental property.f)She would speak with her brother from time to time. She is aware that her brother and his wife contracted the Ebola virus and they both died in August 2014. She was not immediately aware of the situation and what had happened to [Mr A and Ms B].g)She was unsuccessful in attempts to contact her brother but at the time events in Liberia were chaotic due to the Ebola outbreak.h)A friend from school, [name], contacted her after 2015, she thinks, and told her that she had found her niece and nephew and that they were in a bad situation. Her niece [Ms B] had been sexually assaulted and had given birth to a child.i)She arranged for her friend to locate a rental property for [Mr A and Ms B] and she started to financially support them. She has continued to financially support both of them since that time and has returned to Liberia on several occasions to visit them.j)There has never been any discussion or assertion that her brother was not [Ms B]’s father. Her brother has raised [Ms B] together with his wife from her birth until their death in 2014.k)Her nephew and niece do not have any family in Liberia. They are part of her family, and she wants to be reunited with them. Liberia is not a safe country, and she wants her niece and nephew to have the opportunities available to them in this country.Age – reg 1.14(a)(i)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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