Ahmed Hussein (Migration)

[2021] AATA 1178

Ahmed Hussein (Migration) [2021] AATA 1178 (17 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdi Ahmed Hussein

VISA APPLICANTS:  Mr Yunis Yusuf Ahmed

Miss Balkiso Yusuf Ahmed
Mr Zakariye Yusuf Ahmed

CASE NUMBER:  1926328

DIBP REFERENCE(S):  2016047027 OSF2016/047027

MEMBER:Roger Maguire

DATE:17 February 2021

PLACE OF DECISION:  Brisbane

DECISION:

The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the directions that:

a)    the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

· cl.117.211 of Schedule 2 to the Regulations in so far as r.1.14(a)(i) and (b) are concerned; and

· cl.117.221 of Schedule 2 to the Regulations in so far as r.1.14(a)(i) and (b) are concerned.

b)    the second named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

· cl.117.211 of Schedule 2 to the Regulations in so far as r.1.14(b) is concerned;

· cl.117.221 of Schedule 2 to the Regulations in so far as r.1.14(b) is concerned.

c)    the third named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

· cl.117.211 of Schedule 2 to the Regulations in so far as r.1.14(a)(i) and (b) are concerned; and

· cl.117.221 of Schedule 2 to the Regulations in so far as r.1.14(a)(i) and (b) are concerned.

Statement made on 17 February 2021 at 11:57am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa –– visa applicants parents are dead or whereabouts unknown – no parental care – definition of ‘orphan relatives’ met – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.211, 117,221

CASES

Nguyen v MIMA (1998) 158 ALR 639

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 Immigration on 12 July 2019 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 27 June 2016. 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.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211 which stipulates a time of application criteria for the grant of an Orphan Relative visa.

4. For present purposes, r.1.14 of the Regulations is relevantly stated as follows:

   Regulation 1.14 Orphan Relative

   An 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…

   (b)   The Applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts;…

5. The delegate refused to grant the visas because:

   (i) the first named visa applicant Yunis Yusuf Ahmed (the first applicant) did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the first applicant met r.1.14(a)(i) and r.1.14(b);

   (ii) the second named visa applicant Balkiso Yusuf Ahmed (the second applicant) did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the second applicant met r.1.14(b);

   (iii) the third named visa applicant Zakariye Yusuf Ahmed (the third applicant) did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the third applicant met r.1.14(a)(i) and r.1.14(b).

6. The Tribunal has considered the material before it, and elected to decide these applications in the applicants’ favour on the basis of that material as provided for in s.360(2)(a) of the Act.

7. For the following reasons, the Tribunal has concluded that the matters should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the present case are whether:

   (i)    the first applicant meets r.1.14(a)(i) and r.1.14(b);

   (ii)   the second applicant meets r.1.14(b); and

   (iii)  the third applicant meets r.1.14(a)(i) and r.1.14(b).

   Are each of the visa applicants an orphan relative of an Australian relative?

9. 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.

10. ‘Orphan relative’ is defined in r.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): r.1.03 of the Regulations.  In the present case, Mr Abdi Ahmed Hussein, is the relevant Australian relative.

11. For the reasons below, the visa applicants were each an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicants are each an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.

    Age – r.1.14(a)(i)

12. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. There was no evidence to suggest that the second applicant had turned 18 at the time of the visa application, and the delegate made no adverse finding in this regard in relation to the second applicant. However, adverse findings were made regarding the first and third applicants in respect of the requirements of r.1.14(a)(i).

13. There was some evidence before the delegate which suggested that the first and third applicants were both over the age of 18 as at the date of the visa application. However, the following documents before the Tribunal all support findings that the first and third applicants had not turned 18 at the date of the visa application, and were born on the dates stated in the visa application:

    (i)    letter dated 2 February 2019 from Somali Regional State Gade City Administration Gade Secondary & Preparatory School;

    (ii)   court order;

    (iii)  birth certificates;

    (iv)  passports.

14. Whilst the birth certificates provided in respect of the first and third applicants do contain instances of incorrect spelling, in substance they accord with the claimed dates of birth of all three applicants, as do the court order, and the copies of passports, and the most recent advice from their school.

15. The Tribunal gives weight in particular to the dates asserted in the copies of the passports before it, and notes that these dates accord with the dates stated in the translated court order (to which the Tribunal also gives weight), birth certificates and the most recent correspondence from the school. Whilst the Tribunal has some misgivings regarding the information originally provided by the school, the weight of evidence supports a finding that the first and third applicants were both under the age of 18 as at the date of their respective visa applications, and therefore satisfy r.1.14(a)(i), and would continue to meet this requirement but for the fact that they have both turned 18.

16. Accordingly r.1.14(a)(i) was met by all of the applicants at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

17. 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.

18. The evidence before the Tribunal supports a finding that the father of the applicants is dead. Whilst there is some conflict in the evidence regarding last communications from the mother of the applicants, the Tribunal gives greater weight to the totality of the evidence including the correspondence from the Australian Red Cross, and the declarations made by each of the applicants that the whereabouts of their mother was unknown as at the date of the visa applications. The Tribunal finds that the mother of all three applicants was either dead, or of unknown whereabouts as at the date of the visa applications, and that if she is still alive, her whereabouts are unknown, and were as at the date of the visa applications.

19. Accordingly, r.1.14(b) was met by all three visa applicants as at the time of application and continues to be met at the time of decision.

    Conclusion on time of application criterion

20. Given the findings above, r.1.14(a)(i) and r.1.14(b) are met by the first and third applicants, and r.1.14(b) is met by the second applicant.

    Conclusion on time of decision criterion

21. The Tribunal finds that the first applicant does not continue to satisfy the criterion  required by r.1.14(a) and r.1.14(b) for the purposes cl.117.211, but only because the first applicant has turned 18. It follows that cl.117.221 is met in those respects.

22. The Tribunal finds that the second applicant continues to satisfy the criterion required by  r.1.14(b) for the purposes cl.117.211. It follows that cl.117.221 is met.

23. The Tribunal finds that the third applicant does not continue to satisfy the criterion  required by r.1.14(a) and r.1.14(b) for the purposes cl.117.211, but only because the visa applicant has turned 18. It follows that cl.117.221 is met in those respects.

24. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.

    DECISION

25. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the directions that:

    a)    the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations in so far as r.1.14(a)(i) and (b) are concerned; and

    ·cl.117.221 of Schedule 2 to the Regulations in so far as r.1.14(a)(i) and (b) are concerned.

    b)    the second named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations in so far as r.1.14(b) is concerned;

    ·cl.117.221 of Schedule 2 to the Regulations in so far as r.1.14(b) is concerned.

    c)    the third named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations in so far as r.1.14(a)(i) and (b) are concerned; and

    ·cl.117.221 of Schedule 2 to the Regulations in so far as r.1.14(a)(i) and (b) are concerned.

    Roger Maguire
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan relative

    An 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.