Agboola (Migration) - [2024] AATA 3076

Agboola (Migration) [2024] AATA 3076 (16 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Kazeem Adewale Agboola
VISA APPLICANTS:  Ms Michelle Olamide Agboola
Miss Catherine Ibukunoluwa Agboola
CASE NUMBER:  2013334
HOME AFFAIRS REFERENCE(S):          OSF2016/075951
OSF2016/075952
MEMBER:Jason Pennell
DATE:16 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 16 August 2024 at 8.39am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant's home country permits the removal – consent from lawfully determined parents – biological mother is allegedly deceased – DNA test results – non genuine death certificate and court record provided – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 441
Migration Regulations 1994, Schedule 2, cls 101.211, 101.326; Schedule 4, Public Interest Criteria 4017; rr 1.03, 1.05
CASES
Huynh v MIMA [2006] FCAFC 122
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The visa applicants applied for the visas on 26 October 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
3.The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). In this case cl 101.326 states that if the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.[1] Relevantly, cl 4017 and 4018 state:
[1] cl 101.326 Migration Regulations 1994 (Cth) – Schedule 2
4017
The Minister is satisfied of 1 of the following:
(a)   the law of the applicant's home country permits the removal of the applicant.
(b)   each person who can lawfully determine where the applicant is to live consents to the grant of the visa.
(c)   the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

4018
The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

4.The delegate refused to grant the visas on the basis that cl 101.326 had not been satisfied due to the public interest criteria under cl 4017 and cl 4018 not having been met because he was not satisfied that the applicants’ biological mother is dead.
5.The review applicant appeared before the Tribunal on 8 March 2024 to give evidence and present arguments before Member Crawshay. Member Crawshay departed the Tribunal before finalising the review application. As a result, the review applicant…

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 Agboola (Migration)

Details

AGLC: Agboola (Migration) [2024] AATA 3076
Case: [2024] AATA 3076
Decision Date: 16 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) affirmed a decision to refuse a Child (Migrant) (Class AH) visa (subclass 101). The applicant sought review of this refusal. The core of the dispute concerned the applicant's biological mother, whose consent was required for the visa application as she was a lawfully determined parent. The applicant claimed the mother was deceased, but the Tribunal found the evidence provided to support this claim, including a death certificate and court record, to be non-genuine.

The Tribunal was required to determine whether the applicant had discharged the onus of proving that the biological mother was deceased, and consequently, whether the requirement for her consent to the visa application had been met. This involved assessing the authenticity and reliability of the documentary evidence presented by the applicant.

The Tribunal's reasoning focused on the significant discrepancies and inconsistencies within the provided death certificate and court record, leading to the conclusion that they were not genuine. This failure to establish the mother's death meant the applicant could not satisfy the visa requirements concerning parental consent. The Tribunal applied the principles of evidence and the onus of proof in migration matters, finding that the applicant had not discharged their burden.

The Tribunal affirmed the delegate's decision to refuse the visa.

Orders