2206684 (Migration) - [2024] AATA 1219

2206684 (Migration) [2024] AATA 1219 (4 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nicholas Merlin
CASE NUMBER:  2206684
MEMBER:Glynis Bartley
DATE:4 April 2024
PLACE OF DECISION:  Sydney
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 4 April 2024 at 10:13am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – age at time of application – department’s decision made partly on applicant’s appearance – claim that birth certificate provided to agent, who did not provide it to department not accepted – certificate unable to be verified but has similar features to genuinely issued documents – passport also not provided to department – applicant now over 18 – DNA tests conclude highly likely sponsor and applicant are uncle and nephew – parents deceased – younger brother granted visa – combined hearing with application by sponsor’s half-sister/applicant’s aunt – best interests – applicant, aunt and cousin living precariously in third country – financial support by sponsor – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(a), Schedule 2, cls 117.111, 117.211, 117.221
CASE
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
ISSUE

The issue in this review is whether [the visa applicant] is the orphan relative of [the sponsor].
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 23 March 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, which requires that the visa applicant has not turned 18 at the time of application.
The delegate refused to grant the visa on 1 March 2022 on the basis that the visa applicant did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the visa applicant was under 18 years of age at the time of application. The delegate said the physical appearance of the visa applicant in the photographs provided to support the application appeared to indicate that…

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 2206684 (Migration)

Details

AGLC: 2206684 (Migration) [2024] AATA 1219
Case: [2024] AATA 1219
Decision Date: 4 April 2024

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 117 (Orphan Relative) visa application. The visa applicant, who was [Age] years old at the time of application, sought to migrate to Australia as the nephew of the review applicant, an Australian citizen. The review applicant also sponsored his half-sister and the visa applicant's younger brother, both of whom were considered orphan relatives. While the younger brother's visa was granted, the visa applicant's and his aunt's applications were refused by the Department. The Tribunal heard these applications concurrently due to common parties and issues.

The primary legal issues before the Tribunal were whether the visa applicant met the age requirement for the Orphan Relative visa at the time of his application, and whether the grant of the visa would be in his best interests, considering his parents were deceased and he was reliant on his uncle for financial support. The Tribunal also had to consider the authenticity of documents provided, specifically the visa applicant's birth certificate and passport, which had not been submitted to the Department prior to the refusal decision.

The Tribunal noted that the visa applicant's birth certificate, issued prior to the application, was not provided to the Department. While the Tribunal received a copy, it could not be verified due to administrative changes in Somalia, though it bore features of a genuine document. Similarly, the visa applicant's passport, issued over two years before the refusal, was not part of the Department's record. The Tribunal found the review applicant's explanation for the non-provision of these documents to be implausible, particularly given previous correspondence from his migration agent stating the applicant did not possess a birth certificate. Despite these evidentiary issues, DNA tests indicated a high likelihood of the sponsor and applicant being uncle and nephew, and the visa applicant's parents were confirmed deceased. The Tribunal also considered the precarious living situation of the visa applicant, his aunt, and cousin in a third country, and the financial support provided by the sponsor.

Ultimately, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal directed that the visa applicant met the criteria for a Subclass 117 (Orphan Relative) visa under clauses 117.211 and 117.221 of Schedule 2 to the Migration Regulations 1994, implying that the remaining criteria were to be assessed by the Minister.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The review applicant was born in Somalia and is a [Age]-year-old Australian citizen by grant. He migrated to Australia in 1996 after being granted a refugee visa. The review applicant is married and has [children]. He is employed as [an Occupation]. The visa applicant made the following claims in his application. The visa applicant was born in Somalia and currently lives in [City, Country] with his aunt, [Ms A], and [Ms A]’s [child]. He is the nephew of the review applicant and was born on [Date]. Consequently, he was [Age] years old at the time of application. The visa applicant’s parents were killed in a car accident in Somalia in [2015]. He has never been married or in a de facto relationship. The visa applicant is a student, does not work and is entirely reliant on financial support from the review applicant. In addition to sponsoring the visa applicant’s Orphan Relative visa, the review applicant also sponsored his half-sister, [Ms A], her [child] and the visa applicant’s younger brother, [Mr B], on the basis that [Ms A] and [Mr B] are his orphan relatives. The Department refused [Ms A]’s visa on the same basis as the visa applicant’s and the review applicant sought further review of that decision with the Tribunal. The Department granted [Mr B]’s visa in February 2022, and he arrived in Australia in May 2022. The Tribunal held a combined hearing for both the visa applicant and [Ms A] because the applications involved common parties and issues.CONSIDERATION OF CLAIMS AND EVIDENCE Prior to the hearing, the review applicant’s migration agent provided additional documents to the Tribunal including but not limited to the following: a copy of the visa applicant’s birth certificate, issued on 19 June 2016, a copy of the visa applicant’s passport, issued on 8 August 2019, statements by the visa and review applicants, submissions by the review applicant’s representative, and various articles and legal cases about determining the age of migrants and asylum seekers. The visa applicant’s birth certificate had not been provided to the Department, despite it being issued nine months prior to the lodgement of the application. The Tribunal sent the birth certificate to the Department before the hearing to confirm whether it had been issued by the relevant authorities in Somalia. A Departmental officer advised the Tribunal registry that the birth certificate was unable to be verified due to changed administrative arrangements regarding documents issued in Somalia. However, the officer noted that the document has similar features to a genuinely issued document when compared to samples. In making my decision, I have had regard to the documents in the Department and Tribunal files, as well as the oral evidence at the hearing. I received substantially more evidence than the delegate, including copies of identity documents. I also had the opportunity to question the review applicant and visa applicant at the hearing.

Evidence

Evidence Before The Court

In addition to sponsoring the visa applicant’s Orphan Relative visa, the review applicant also sponsored his half-sister, [Ms A], her [child] and the visa applicant’s younger brother, [Mr B], on the basis that [Ms A] and [Mr B] are his orphan relatives. The Department refused [Ms A]’s visa on the same basis as the visa applicant’s and the review applicant sought further review of that decision with the Tribunal. The Department granted [Mr B]’s visa in February 2022, and he arrived in Australia in May 2022. The Tribunal held a combined hearing for both the visa applicant and [Ms A] because the applications involved common parties and issues.CONSIDERATION OF CLAIMS AND EVIDENCE Prior to the hearing, the review applicant’s migration agent provided additional documents to the Tribunal including but not limited to the following: a copy of the visa applicant’s birth certificate, issued on 19 June 2016, a copy of the visa applicant’s passport, issued on 8 August 2019, statements by the visa and review applicants, submissions by the review applicant’s representative, and various articles and legal cases about determining the age of migrants and asylum seekers. The visa applicant’s birth certificate had not been provided to the Department, despite it being issued nine months prior to the lodgement of the application. The Tribunal sent the birth certificate to the Department before the hearing to confirm whether it had been issued by the relevant authorities in Somalia. A Departmental officer advised the Tribunal registry that the birth certificate was unable to be verified due to changed administrative arrangements regarding documents issued in Somalia. However, the officer noted that the document has similar features to a genuinely issued document when compared to samples. In making my decision, I have had regard to the documents in the Department and Tribunal files, as well as the oral evidence at the hearing. I received substantially more evidence than the delegate, including copies of identity documents. I also had the opportunity to question the review applicant and visa applicant at the hearing. The oral evidence provided by the review applicant, the visa applicant and [Ms A] was generally consistent. When asked why the visa applicant’s birth certificate had not been provided to the Department despite requests by the relevant officer to his previous migration agent for copies of identity documents to support the application, the review applicant claimed that he had provided the birth certificate to the previous migration agent, and he could not explain why it had not been provided to the Department. I did not find the review applicant’s explanation to be plausible. The Department’s file contains lengthy communications between the review applicant’s previous migration agent and the Departmental officer with carriage of the matter, including in relation to identity documents. In her submissions dated 6 December 2021, the review applicant’s previous migration agent said “…[i]t is submitted that the [visa] applicant does not have a birth certificate or other birth documents…” I was not persuaded that the review applicant’s previous migration agent had been provided with a copy of the visa applicant’s birth certificate as the review applicant claimed, although it was unclear why. Unfortunately, the Department was unable to verify the authenticity of the birth certificate provided to the Tribunal. Similarly, the delegate referred to the visa applicant’s passport photograph in the Record of Decision, but his passport was not included in the list of documents that the delegate received prior to making his decision. The review applicant’s previous migration agent submitted on 5 August 2019 that the visa applicant’s passport was expected to be issued in approximately two weeks and would be provided to the Department as soon as possible. It appears that the delegate was not given a copy of the visa applicant’s passport, because it was not referred to in the Record of Decision, despite the passport being issued more than two years before the application was refused. Again, I was unable to determine why that document was not submitted to support the application.

Decision

Reasons for decision

Consequently, 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 applications for Child (Migrant) (Class AH) visas 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.Glynis BartleyMemberATTACHMENT – 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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