Abraha (Migration) - [2018] AATA 4922

Abraha (Migration) [2018] AATA 4922 (22 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Yemane Etay Abraha
VISA APPLICANT:  Mr Yonas Yemane Abrha
CASE NUMBER:  1618144
HOME AFFAIRS REFERENCE(S):           OSF2015/075666
MEMBER:Kira Raif
DATE:22 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Statement made on 22 October 2018 at 5:01pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – dependent child – DNA testing – no biological relationship – genuine belief of a parent-child relationship – no evidence of adoption – no discretion to grant visa – decision under review affirmed
LEGISLATION
Family Law Act 1975 (Cth) ss 60H, 60HA, 60HB
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2 cls 101.211, 101.221
CASES
Donnell v Dovey [2010] FamCAFC 15
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 Immigration and Border Protection on 11 October 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a national of Ethiopia born in December 1995. He applied for the visa on 30 November 2015. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the applicant was a child of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya (Ethiopian) and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).
Is the visa applicant the child of the sponsor?
The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant claimed to be a biological child of the sponsor and the sponsor stated on the sponsorship form that he is the father of…

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.

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Details

AGLC: Abraha (Migration) [2018] AATA 4922
Case: [2018] AATA 4922
Decision Date: 22 October 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 101 (Child) visa. The applicant sought to establish a parent-child relationship with the sponsor, which was a key criterion for the visa.

The central legal issue before the Tribunal was whether the applicant met the definition of a "dependent child" for the purposes of the Subclass 101 visa. This required the Tribunal to determine if a genuine biological parent-child relationship existed, or if alternative grounds such as adoption were established, and whether the applicant's belief in such a relationship was sufficient in the absence of biological proof.

The Tribunal's reasoning focused on the evidence presented, particularly DNA testing, which indicated no biological relationship between the applicant and the sponsor. The Tribunal found no evidence to support a claim of adoption or any other basis for establishing the required parent-child relationship. Consequently, the Tribunal concluded that the criteria for the grant of the Subclass 101 visa were not met, and no claims were advanced in respect of other visa subclasses within Class AH.

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

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Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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