2206821 (Migration) - [2023] AATA 1097

2206821 (Migration) [2023] AATA 1097 (28 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2206821

MEMBER:James Lambie
DATE OF ORAL DECISION:  28 March 2023
DATE OF WRITTEN STATEMENT:         29 March 2023
PLACE OF DECISION:  Brisbane
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(a) of Schedule 2 to the Regulations; and
·cl 117.221(a) of Schedule 2 to the Regulations.

Statement made on 29 March 2023 at 1:30pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – inconclusive DNA evidence – registration of births in Burundi – financial support by review applicant – common law presumption of death – best interests of the visa applicant – decision under review remitted
LEGISLATION
Family Law Act 1975, s 60
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14; Schedule 2, cls 117.111, 117.211, 117.221
CASES
Axon v Axon (1937) 59 CLR 395
Kim v MIAC [2007] FMCA 798
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 2 March 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 16 November 2015. 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 117.221(a).
The delegate refused to grant the visa because the applicant did not meet cl 117.221(a) of Schedule 2 to the Regulations because there was insufficient evidence that the visa applicant met the definition of Orphan Relative within the meaning of Reg. 1.14(a)(iii) and (b).
The review applicant appeared before the Tribunal on 28 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kirundi and English languages.
The review applicant was represented in relation to the review.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 28 March 2023.
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 is an orphan relative within…

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 2206821 (Migration)

Details

AGLC: 2206821 (Migration) [2023] AATA 1097
Case: [2023] AATA 1097
Decision Date: 28 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The review applicant sought to sponsor the visa applicant, claiming to be her aunt and an Australian relative. The central dispute revolved around whether the visa applicant met the definition of an "orphan relative" as defined in the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant was an orphan relative of an Australian relative, specifically addressing whether she had not turned 18, did not have a spouse or de facto partner, and was a relative of the review applicant. Furthermore, the Tribunal had to consider whether the visa applicant's parents were deceased, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the best interests of the applicant. The delegate had previously found the evidence of the familial relationship deficient due to issues with the birth certificate and inconclusive DNA evidence.

The Tribunal reasoned that the visa applicant met the age and marital status requirements. While acknowledging the delegate's concerns regarding the familial relationship, the Tribunal found that the visa applicant was an orphan relative of an Australian relative at the time of application and continued to be so at the time of the decision. The Tribunal noted that the delegate's decision was based on the perceived deficiency in proving the relationship and the inconclusive DNA evidence. However, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the visa applicant met the criteria under cl 117.211(a) and cl 117.221(b) 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 is an orphan relative within the meaning of reg 1.14 of the Regulations.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 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 applicant submitted a Republic of Burundi birth certificate showing she was born on [date]. Accordingly reg 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. The evidence of the review applicant is that the visa applicant does not have a spouse or de facto partner, and there is no evidence to the contrary. Accordingly, reg 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. The review applicant ([named]) claims to be the aunt of the visa applicant ([named]) by reason that [the review applicant] is the sister of [the visa applicant’s] father ([Mr A]). The delegate considered the evidence of this relationship to be deficient in two respects:(a)[The visa applicant] did not submit an original birth certificate to attest to the identity of her biological parents, or her familial relationship with [the review applicant] and her attestation letter was not issued by an approved governing authority for birth registrations;(b)The DNA evidence was inconclusive as to a familial connection between [the review applicant] and [the visa applicant] and, further, indicated that the relationship between [the visa applicant] and her claimed brother, [Mr B] (whom [the review applicant] also seeks to sponsor), was that of half siblings.

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(a) of Schedule 2 to the Regulations; and·cl 117.221(b) of Schedule 2 to the Regulations.James LambieSenior MemberATTACHMENT – 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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