Ali (Migration) - [2020] AATA 6053

Ali (Migration) [2020] AATA 6053 (11 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Abdi Ubah Ali
VISA APPLICANT:  Master Ismail Abdikarin Yusuf
CASE NUMBER:  1729129
DIBP REFERENCE(S):  2017024146 OSF2017024146
MEMBER:Christine Kannis
DATE:11 December 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 11 December 2020 at 6:51am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – 117 (Orphan Relative) visa – visa applicant has not turned 18 at the time of application – visa applicant is the nephew of the review applicant – death certificates were counterfeit – not satisfied both the visa applicant’s parents are dead – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.211, 117.221

CASES
EC v MIMIA [2004] FCA 978
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 Immigration on 14 September 2017 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 applied for the visa on 17 February 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 (the Regulations). Relevantly to this case, they include cl.117.211 and cl.117.221.
The visa was refused because the delegate was not satisfied that the visa applicant was a relative of the review applicant or that the visa applicant’s parents are either deceased or incapacitated or missing and therefore, he did not meet cl.117.211.
The review applicant appeared before the Tribunal on 16 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Abdirahman Yusuf Jama, and by telephone from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
Following the hearing the Tribunal decided to affirm the decision under review and a Decision Record dated 4 December 2020 was sent to the review applicant. That Decision Record referred to the birth certificates for the review applicant’s husband and the visa applicant’s father not having been provided. Subsequently, the review applicant’s representative brought to the Tribunal’s attention that these birth certificates had been provided prior to the hearing. The birth certificates were not before the Tribunal at the time of decision on 4 December 2020 and were therefore not considered. In these circumstances the Tribunal decided to re-open and reconsider…

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: Ali (Migration) [2020] AATA 6053
Case: [2020] AATA 6053
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision not to grant a Child (Migrant) (Class AH) visa to the visa applicant. The review applicant, Ms Abdi Ubah Ali, was the Australian relative in question. The central dispute was whether the visa applicant qualified as an "orphan relative" of Ms Ali under the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant met the criteria for being an orphan relative as defined in regulation 1.14 of the Migration Regulations 1994, both at the time of the visa application and at the time of the Tribunal's decision. Specifically, the Tribunal needed to assess whether the applicant had not turned 18, did not have a spouse or de facto partner, was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts, and whether there was no compelling reason to believe that granting the visa would not be in the applicant's best interests.

The Tribunal found that the visa applicant met the age requirement (not having turned 18 at the time of application) and the requirement of not having a spouse or de facto partner. However, the Tribunal's reasons indicate that the applicant did not meet the definition of an orphan relative, and therefore the criteria for the Subclass 117 visa were not satisfied. The Tribunal affirmed the decision not to grant the 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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is an orphan relative of an Australian relative. 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. In the present case, the review applicant, Ms Abdi Ubah Ali, is the relevant Australian relative. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. Regulation 1.14. says a visa 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 spouse or de facto 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’. The Tribunal notes that in meeting the criteria all aspects of the definition must be considered and met. If the visa applicant does not meet one aspect of the definition in r.1.14 then he cannot meet cl.117.211. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative 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.Age – r.1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicant’s passport indicates his date of birth is 5 October 1999. At hearing the review applicant and the visa applicant confirmed that the visa applicant’s date of birth is 5 October 1999. The application was lodged on 17 February 2017. The Tribunal has no evidence that the applicant’s date of birth is otherwise than as stated. Accordingly, r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision even though the visa applicant is now 21 years of age.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. At hearing the review applicant and the visa applicant confirmed that the visa applicant does not have a spouse or de facto partner. The Tribunal is prepared to accept that the visa applicant does not have a spouse or de facto partner. 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)

Decision

Reasons for decision

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