2207208 (Migration) - [2024] AATA 542

2207208 (Migration) [2024] AATA 542 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Libby Anne Hogarth (MARN: 9364758)
CASE NUMBER:  2207208
MEMBER:Jason Pennell
DATE:13 February 2024
PLACE OF DECISION:  Melbourne
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 13 February 2024 at 9.40am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death certificates for parents – financial support for family – impacts of war in Ethiopia – communication with visa applicant – DNA testing – best interests of the visa applicant – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

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 28 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 18 May 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 and cl 117.221 of Schedule 2 to the Regulations.
The delegate refused to grant the visa because the visa applicant did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied that at the time of the application the applicant could not be cared for by either parent because each of them was either dead, permanently incapacitated or of unknown whereabouts.
The review applicant appeared before the Tribunal on 2 February 2024 to give evidence and present arguments. [Sister A] (sister) and [Person A] were also available to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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…

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 2207208 (Migration)

Details

AGLC: 2207208 (Migration) [2024] AATA 542
Case: [2024] AATA 542
Decision Date: 13 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The applicant sought this visa as the orphan relative of an Australian citizen. The core of the dispute revolved around whether the applicant met the criteria for being an orphan relative, particularly concerning the death of her parents and the financial support provided by her Australian relative.

The Tribunal was required to determine whether the applicant was an orphan as defined by the Migration Regulations, specifically whether her parents were deceased and if she was in the financial care of her Australian sponsor. The Tribunal also had to consider the impact of the war in Ethiopia on the availability of evidence, the communication with the visa applicant, and whether DNA testing was necessary to establish the relationship. Crucially, the Tribunal had to assess whether the decision made was in the best interests of the child, as mandated by migration law.

In its reasoning, the Tribunal acknowledged the difficulties in obtaining conclusive evidence, such as death certificates, due to the conflict in Ethiopia. It found that the evidence presented, including statutory declarations and communication records, was insufficient to definitively establish the death of the applicant's parents and her reliance on her Australian sponsor for financial support. The Tribunal also noted that the applicant's sponsor had not adequately demonstrated their capacity to provide the necessary support. Consequently, the Tribunal concluded that the original decision to refuse the visa was not affected by an error of law and that the matter should be remitted to the AAT for reconsideration.

Orders