Abdrehman (Migration) - [2021] AATA 4597

Abdrehman (Migration) [2021] AATA 4597 (12 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Hidra Muhammed Abdrehman
VISA APPLICANTS:  Ms Hanan Hamid Birhan
Master Hamza Hamid Birhan
CASE NUMBER:  1835454
HOME AFFAIRS REFERENCE(S):          2017023237 OSF2017023237
MEMBER:M. Edgoose
DATE:12 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 12 November 2021 at 2:16pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – mother’s unknown whereabouts – tracing enquiries with the Red Cross – visa applicants not adopted – decision under review affirmed
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
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 8 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 25 July 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.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 12 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mustofa Ahmed the spouse of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.
The review applicant was represented in relation to the review.
Although suspended by the Office of the Migration Agents Registration Authority Mr Tedla Wanaw has continued to make submissions to the Tribunal on the review applicant’s behalf. On 29 September 2021 the Tribunal received one email submission from Mr Tedla Wanaw on behalf of the review applicant which included a number of attachments. The email signature said Mr Tedla Wanaw, representative. Mr Tedla Wanaw made a further submission to the Tribunal on 11 November 2021. Given this it is clear to the Tribunal that Mr Tedla Wanaw has continued to represent and make submissions on the review applicants behalf although being suspend by the Office of the Migration Agents Registration Authority. Mr Tedla Wanaw’s actions while suspended have had no bearing on the outcome of this matter.
For the following reasons, the…

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 Abdrehman (Migration)

Details

AGLC: Abdrehman (Migration) [2021] AATA 4597
Case: [2021] AATA 4597
Decision Date: 12 November 2021

CaseChat Overview and Summary

This matter concerned an appeal against a decision not to grant Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative) visas. The visa applicants sought to establish that they were orphan relatives of an Australian relative, Mrs Hidra Muhammed Abdrehman. The Tribunal was required to determine whether the visa applicants met the criteria for an orphan relative visa under the Migration Regulations 1994.

The central legal issue was whether the visa applicants qualified as "orphan relatives" as defined by regulation 1.14 of the Migration Regulations 1994. This required the Tribunal to assess whether the applicants were under 18, not in a relationship, a relative of an Australian citizen, and crucially, whether both parents were either deceased, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider whether there was a compelling reason to believe that granting the visa would not be in the best interests of the applicants.

The Tribunal considered evidence that the visa applicants' father had passed away in 2004 and that their mother had gone to Saudi Arabia for employment in 2009 and had not been heard from since 2011. However, the Tribunal found that there was no physical evidence to support the claim that the mother was of unknown whereabouts, giving little weight to a statutory declaration provided by the review applicant. The Tribunal applied the definition of "permanent incapacity" as per *Nguyen v MIMA* (1998) 158 ALR 639, noting it does not refer to a mere refusal or unwillingness to care. As the criterion regarding the parents' status could not be satisfied due to a lack of supporting evidence, the Tribunal concluded that the visa applicants did not meet the requirements for an orphan relative visa.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants their Child (Migrant) (Class AH) visas.

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 EVIDENCEIs 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, Mrs Hidra Muhammed Abdrehman, is the relevant Australian relative. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is not met, and does not continue to be met at the time of decision.No parental care – reg 1.14(b) Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J. The Tribunal has given regard to the review applicants Statutory Declaration dated 29 September 2021 that mentioned that the visa applicants father had passed away in 2004 and that her sister, the visa applicant’s mother had left in 2009 for Saudi Arabia for employment and stayed for about two years before she went missing. The visa applicant’s mother had been employed as a domestic worker and remained in contact with the family for two years. The review applicant claimed that since 2011 she, the visa applicant’s and her family in Ethiopia have not heard from her. At hearing the review applicant confirmed to the Tribunal that this is correct. She further mentioned that she has supported the visa applicant’s financially and that she is the mother of four children in Australia. The review applicant mentioned that she has returned to Ethiopia in November 2018 until February 2019 and visited the visa applicants. At hearing the review applicant confirmed to the Tribunal that the information contained within the Statutory Declaration is true and correct. The Tribunal acknowledges that the review applicant has provided a detailed statutory declaration however there is no physical evidence to support the claim that the visa applicants mother is missing and of unknown whereabouts. For this reason, the Tribunal gives little weight to the statutory declaration.

Decision

Reasons for decision

For these reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.DECISION The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.M. EdgooseMemberATTACHMENT – 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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