Abdullah Alinur (Migration) - [2021] AATA 5407

Abdullah Alinur (Migration) [2021] AATA 5407 (3 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Hindiyo Abdullah Alinur
VISA APPLICANT:  Miss Naimo Abdullahi Alinur
CASE NUMBER:  1823176
HOME AFFAIRS REFERENCE(S):          OSF2015075188
MEMBER:M. Edgoose
DATE:3 December 2021
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 03 December 2021 at 11:45am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – visa applicant is living with neighbour’s family – no evidence that the visa applicant has been adopted by the review applicant – decision under review affirmed

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

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 4 June 2018 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 4 June 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 117.211.
The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.
The review applicant appeared before the Tribunal on 5 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Naimo Abdullahi Alinur the visa applicant, Mr Abdurahman Adem a family friend and neighbour and Mr Abdurished Aliye a friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.
On 5 November 2021 the Tribunal Member adjourned the hearing as during his introduction the Member was no satisfied with the quality of the assigned interpreter. The review applicant and representative were informed that the matter would be rescheduled for another time. The hearing recommenced on 3 December 2021 at 10am.
The review applicant was represented in relation to the review by their representative.
For the following reasons, the Tribunal has concluded that the under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 Abdullah Alinur (Migration)

Details

AGLC: Abdullah Alinur (Migration) [2021] AATA 5407
Case: [2021] AATA 5407
Decision Date: 3 December 2021

CaseChat Overview and Summary

This matter concerned an appeal by the review applicant against the decision of the Tribunal to affirm the refusal of a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa, for the visa applicant. The visa applicant was living with the neighbour’s family, and the core of the dispute revolved around whether the visa applicant met the definition of an "orphan relative" under the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant was an "orphan relative" of an Australian relative at the time of application and at the time of the decision, as required by clause 117.211 of the Migration Regulations. This involved assessing whether the visa applicant could be cared for by either parent, as defined by regulation 1.14(b), which requires that each parent be dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered the definition of an "Australian relative" and "relative" as set out in the Regulations.

The Tribunal's reasoning focused on the definition of an orphan relative and the evidence presented regarding the visa applicant's parents. It noted inconsistencies between the statements made by the review applicant and the visa applicant concerning the father's health and status, particularly in light of DNA testing that established a biological sibling relationship between the review applicant and the visa applicant, rather than the half-sibling relationship initially suggested. The Tribunal found that the claims regarding the father's death or permanent incapacity were not sufficiently substantiated, with conflicting accounts provided about his condition and passing. Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 117 visa were not met.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

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 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 Hindiyo Abdullah Alinur, 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 delegates decision mention that following DNA testing it was found that the review applicant and visa applicant are related as biological full siblings rather than half biological siblings. The delegate noted that statements from the review applicant and visa applicant were not consistent with the DNA test outcomes. At time of application the review applicant stated “That I know that the applicant’s father is on routine blood pressure tablet…” whereas the claims in the visa application and parts of the review applicant’s submission stated that the visa applicant’s father is deceased. At hearing the review applicant said to the Tribunal that in the end of 2014 my father was not feeling well, and that review applicant had to look after the little one, meaning the visa applicant. After a short period of time the review applicant stated to the Tribunal that her father passed away in 2015. The applicant informed the Tribunal that a death certificate had provided been provided to the Tribunal.

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 decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.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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