2319047 (Migration) - [2024] AATA 2484

2319047 (Migration) [2024] AATA 2484 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Rasheed Qasimi (MARN: 1575435)
CASE NUMBER:  2319047
MEMBER:Margie Bourke
DATE:22 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 22 March 2024 at 11:25am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – 117 (Orphan Relative) visa – review applicant failed to provide information – DNA testing – not satisfied the medical reports are evidence the visa applicant’s father is permanently incapacitated – not satisfied that the visa applicant’s parents were permanently incapacitated from providing care for him at the time of application – not satisfied that the visa applicant is an orphan relative – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.111, 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 17 October 2023 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 7 September 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 a visa applicant is an orphan relative of an Australian relative at the time of application within the meaning of reg 1.14, or alternatively is not an orphan relative only because the visa applicant has been adopted by the Australian relative.
The delegate refused to grant the visa because the visa applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant met the definition of orphan relative in reg 1.14(b).
The review applicant appeared before the Tribunal on 20 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, [name], who attended the hearing by telephone. The Tribunal hearing was conducted with the assistance of an [interpreter].
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 decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issue in the present case is whether the visa applicant cannot be cared for…

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 2319047 (Migration)

Details

AGLC: 2319047 (Migration) [2024] AATA 2484
Case: [2024] AATA 2484
Decision Date: 22 March 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a Child (Migrant) (Class AH) visa, specifically the 117 (Orphan Relative) subclass. The review applicant, who is the brother of the visa applicant, sought to have the decision not to grant the visa set aside. The central dispute revolved around whether the visa applicant met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision, considering the criteria outlined in clause 117.211 and 117.221 of the Migration Regulations. Specifically, the Tribunal had to assess whether the visa applicant's parents were either dead, permanently incapacitated, or of unknown whereabouts, thereby preventing them from caring for the visa applicant. The Tribunal also considered whether granting the visa would be in the best interests of the visa applicant.

The Tribunal noted that DNA testing indicated a strong biological relationship between the review applicant and the visa applicant, establishing them as brothers and thus "close relatives" as defined by regulation 1.03. However, the Tribunal was not satisfied that the medical reports provided constituted sufficient evidence that the visa applicant's father was permanently incapacitated. Furthermore, the Tribunal concluded that it was not satisfied that both of the visa applicant's parents were permanently incapacitated from providing care at the time of the application, nor were their whereabouts unknown. Consequently, the Tribunal found that the visa applicant did not meet the definition of an orphan relative under regulation 1.14(b).

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, as the criteria for the Subclass 117 visa were not met. The Tribunal also noted that no claims had been advanced regarding other child visa subclasses within Class AH.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The main issue in the present case is whether the visa applicant cannot be cared for by either parent at the time of application because each of them is either dead, permanently incapacitated or of unknown whereabouts (reg 1.14(b)). At the conclusion of the hearing, the Tribunal discussed with the review applicant and his representative that the member had not made up her mind, and had to consider whether the visa applicant met the requirements of reg 1.14(b) at the time of application, or at the time of decision. The Tribunal advised the review applicant that it did not request any further information to be provided, but requested the review applicant and his representative to advise the Tribunal if he wished to provide further information for the Tribunal to consider. On 21 March 2024 the Tribunal sent an email to the review applicant at the email address of his representative and authorised recipient for correspondence, advising the Tribunal had not received any advice from the review applicant as to whether he wished to submit any further information. The Tribunal advised in the email that the member has completed her considerations and intends to finalise the decision, and the purpose of the email correspondence is to notify the review applicant that the decision will be finalised on the next day, 22 March 2024 unless the review applicant advises that he wishes to provide posthearing submissions for the member to consider. The Tribunal did not receive any response from the review applicant, and has proceeded on the basis the review applicant did not wish to provide any further information or submissions for the Tribunal to consider in this review.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 Department’s decision record, it is recorded that the review applicant and the visa applicant participated in DNA testing, which concluded there was extremely strong support for the proposition that the review applicant and the visa applicant are full biological brothers. The Tribunal is satisfied that the review applicant is a close relative within the meaning of reg 1.03, of the visa applicant, namely his brother.

Decision

Reasons for decision

For these reasons, the criteria for the grant of a Subclass 117 visa are not met. The visa applicant does not meet the criteria for the other child visa subclasses. These alternative options were discussed in the hearing. There have been no claims advanced in respect of the other visa subclasses in Class AH.DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Margie BourkeMemberATTACHMENT – 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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