Ali (Migration) - [2022] AATA 4657

Ali (Migration) [2022] AATA 4657 (8 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Abdulkadir Ali Ali
VISA APPLICANTS:  Master Hamza Johar Aman
Master Mohamed Johar Aman
Miss Rahma Johar Aman
CASE NUMBER:  1836128
HOME AFFAIRS REFERENCE(S):          2016047149 OSF2016047149
MEMBER:Stephen Conwell
DATE:8 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 08 November 2022 at 2:36pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ of an Australian relative – step-uncle – marriage between sponsor’s father and applicant’s grandmother – no parental care – contradictory evidence regarding the death of applicant’s father – medical evidence regarding applicant’s mother’s mental health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cl 117.211
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 20 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 (applicants) applied for the visas on 17 August 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.
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.
In three separate decisions made on the same date by the same delegate, each applicant was refused the grant a visa because they each did not meet cl.117.211 of Schedule 2 to the Regulations since the delegate was not satisfied that (a) that each applicant was a relative of the sponsor as defined in Regulation 1.14 and (b) that each applicant was “orphaned” sponsor as defined.
The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video and telephone hearing via Microsoft Teams. The parties raised no objections as to conducting the hearing in this manner.
The sponsor participated in the hearing by video on 20 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Abdulkadir Ali Ali and from witnesses Mr Saman Kimo and Ms Shamsiya Kemal. None of the applicants attended the hearing. The hearing was conducted…

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 Ali (Migration)

Details

AGLC: Ali (Migration) [2022] AATA 4657
Case: [2022] AATA 4657
Decision Date: 8 November 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered whether the applicants qualified for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan relative). The applicants sought to establish that they were "orphan relatives" of an Australian relative, Mr. Abdulkadir Ali Ali. The core of the dispute revolved around whether the applicants met the definition of an "orphan relative" as defined in the Migration Regulations 1994.

The Tribunal was required to determine if the applicants satisfied the criteria for being an orphan relative of an Australian relative at the time of their visa application and at the time of the Tribunal's decision. Specifically, the Tribunal had to assess whether the applicants were under 18, did not have a partner, were a relative of the Australian sponsor, and crucially, could not be cared for by either parent because both were deceased, permanently incapacitated, or their whereabouts were unknown. The Tribunal also needed to consider if there was any compelling reason to believe that granting the visa would not be in the applicants' best interests.

The Tribunal's reasoning focused on the definition of an "orphan relative" under regulation 1.14 of the Migration Regulations. This definition requires that both parents be unable to care for the applicant due to death, permanent incapacity, or unknown whereabouts. The Tribunal noted contradictory evidence regarding the death of the applicant's father and raised concerns about the medical evidence concerning the applicant's mother's mental health, which cast doubt on her permanent incapacity. Given these evidentiary issues and the strict requirements of the definition, the Tribunal concluded that the applicants did not meet the criteria of being an orphan relative of an Australian relative at either the time of application or the time of the decision.

Consequently, the Tribunal affirmed the decisions not to grant the Child (Migrant) (Class AH) visas to the applicants, finding that the criteria for the visa subclass were not met.

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 decision under review should be affirmed.consideration of claims and evidence The issue in the present case is whether the applicants are the orphaned relatives of the sponsor. The Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record pertaining to each applicant, visa application forms and supporting documents, financial information, communication records, written statements by the sponsor, as well as the oral testimonies given at the hearing.Are the visa applicants orphan relatives 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 sponsor, Mr Abdulkadir Ali Ali, is the relevant Australian relative. Both Subclasses 117 and 837 require, with limited exception, that at the time of application and decision the applicant is the ‘orphan relative’ of an Australian relative as defined in r.1.14. An applicant is an orphan relative if he or she:·is a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; ·has not turned 18;·does not have a partner;·cannot be cared for by either parent[1] because each of them is either dead, permanently incapacitated or of unknown whereabouts; and·there is no compelling reason to believe that the visa grant would not be in the applicant’s best interests.[1] ‘Parent’ is defined in s.5(1) of the Act. See also r.1.14A(1) of the Regulations (post 1 July 2009) which specifies that a reference to ‘parent’ includes ‘step-parent’. At the time of decision the applicant must continue to satisfy the criterion in cl.117.211 (orphan relative or adopted), or not continue to satisfy that criterion only because the applicant has turned 18. The Tribunal notes that in meeting the criteria all aspects of the definition must be considered and met. If the applicant does not meet one aspect of the definition then the applicant cannot meet the criteria for r.1.14. For the reasons below, the applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the applicants are not orphan relatives 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 in respect of all the applicants.Age – r.1.14(a)(i)

Decision

Reasons for decision

For these reasons, the criteria for the grant of a Subclass 117 visa are not met by any of the applicants. There have been no claims advanced in respect of the other visa subclasses in Class AH.decision The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Stephen ConwellMemberATTACHMENT – 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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