Andargi (Migration)

[2022] AATA 1093

Andargi (Migration) [2022] AATA 1093 (31 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Zemen Lemlemu Andargi

VISA APPLICANTS:  Mr Eyob Lemlemu Andargi
Miss Samrawit Lemlemu Andargi
Miss Yabesera Lemlemu Andargi

REPRESENTATIVE:  Ms Mary Hanna (MARN: 0209443)

CASE NUMBER:  1823007

HOME AFFAIRS REFERENCE(S):          2015074961 OSF2015074961

MEMBER:M. Edgoose

DATE:31 January 2022

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(a) of Schedule 2 to the Regulations; and

· cl 117.221 of Schedule 2 to the Regulations.

Statement made on 31 January 2022 at 12:12pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – review applicant is the sibling of the visa applicants as claimed – death certificates provided – Tribunal is satisfied that the visa applicants cannot be care for by either parent – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

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 Home Affairs on 11 June 2018 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 17 March 2015. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211(a).

4. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211(a) of Schedule 2 to the Regulations.

5. The review applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is the visa applicant an orphan relative of an Australian relative?

7. 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.

8. ‘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, Ms Zemen Lemlemu Andargi, is the relevant Australian relative.

9. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is 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.

   Relative – reg 1.14(a)(iii)

10. 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

11. On 11 January 2022 the Tribunal requested the review applicant and visa applicant’s undergo DNA testing.  On 24 January 2022 and 25 January 2022, the Tribunal received notification that the DNA testing process was underway. However, based on the substantial evidence that has been submitted to the Tribunal and the willingness to undertake the DNA testing immediately the Tribunal is satisfied that the review applicant is the sibling of the visa applicants as claimed. Therefore, the request for the DNA testing is no longer required by the Tribunal.

12. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

13. 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.

14. The Tribunal has considered the immense amount of evidence that was submitted to the Tribunal on 5 March 2021 by the review applicant. The evidence submitted included school reports of the visa applicant’s, death certificates of the parents both in original and translated formats, a court order, burial testimony both in original and translated formats, vaccination cards for each of the visa applicant’s and medical certificates. On 30 November 2021 the Tribunal received a further submission from the review applicant’s representative that clearly outlined the chronology of events and a range of further supporting documents. Given that the Tribunal has been provided with the death certificates

15. and burial testimonies of the review applicant and visa applicant’s parents the Tribunal is satisfied that the visa applicants cannot be care for by either parent because each of them is dead.

16. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

17. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl 117.211. It follows that cl 117.221 is met.

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

    DECISION

19. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl 117.211(a) of Schedule 2 to the Regulations; and

    ·cl 117.221 of Schedule 2 to the Regulations.

    M. Edgoose
    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.