Adem (Migration) - [2023] AATA 1670

Adem (Migration) [2023] AATA 1670 (31 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANTS:  Mrs Madiya Alo Adem

VISA APPLICANTS:
Miss Saliha Alo Adem


Mr Mohammed Alo Adem
Mr Jemal Alo Adem
Miss Samara Alo Adem

REPRESENTATIVE: Ms Kathleen Coffey
CASE NUMBER: 1901205

HOME AFFAIRS REFERENCE(S):          OSF2017/024024
  OSF2017/024025
  OSF2017/024026
  OSF2017/024027
MEMBER:Justin Meyer
DATE:31 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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 31 May 2023 at 3:04pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of parents – applicant’s father died in prison – money transfers – human rights violations in Ethiopia – Red Cross Tracing report – 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
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 15 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 3 January 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 117.221.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117. 211of Schedule 2 to the Regulations because regulation 1.14(b) was not met. Therefore, it follows that he did not meet the requirements of regulation 117.211.
Under this definition there must be satisfaction that he cannot be cared for by either of his parents because each of them is either dead, permanently incapacitated or of unknown whereabouts. The applicant had not provided a death certificate for his father notwithstanding that it is possible to obtain such documents in Ethiopia. The fact that no death certificate has been provided led the delegate to conclude that his father is not deceased as claimed. Although the applicant’s mother is claimed to have been missing since 13 October 2012, no evidence has been submitted to show that an attempt has been made to trace her whereabouts. The onus rests with the applicant to present evidence in support of his…

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 Adem (Migration)

Details

AGLC: Adem (Migration) [2023] AATA 1670
Case: [2023] AATA 1670
Decision Date: 31 May 2023

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding applications for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative) visas. The applicants sought to establish that they were orphan relatives of an Australian permanent resident, who was their sister. The core of the dispute revolved around whether the applicants met the definition of "orphan relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicants satisfied the criteria for being an orphan relative of an Australian relative at the time of their application and at the time of the decision. This involved assessing whether the applicants had not turned 18, did not have a spouse or de facto partner, and were a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Crucially, the Tribunal also had to consider whether each of the applicants' parents was either dead, permanently incapacitated, or of unknown whereabouts, and whether there was any compelling reason to believe that granting the visa would not be in the best interests of the applicants.

The Tribunal found that the applicants, at the time of application and at the time of the decision, were indeed orphan relatives of their sister, who was an Australian permanent resident. Evidence established their sibling relationship, and while some applicants had turned 18 by the time of the decision, the Tribunal found they continued to satisfy the criterion because this was only due to their age. There was no evidence of them having a spouse or de facto partner. The Tribunal concluded that the applicants met the criteria under cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with the direction that the visa applicants met the specified criteria for a Subclass 117 (Orphan Relative) 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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicants are orphan relatives.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 present case, the visa applicants’ sister, Mrs Madiya Alo Adem, is the relevant Australian relative (she was a permanent resident at the time of the visa application). For the reasons explained below, the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. There is consistent oral evidence that the visa applicants and their sponsor are siblings. Therefore, the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicants provide documentary evidence that they are presently aged 19, 22, 23 and 24. They were all under 18 at the time of application. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18.Spouse or de facto partner – r.1.14(a)(ii) Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Having questioned the applicants and examined all materials before me there is no evidence that this has occurred. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision. Relative – r.1.14(a)(iii) Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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.Justin MeyerMemberATTACHMENT – 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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