Anota (Migration) - [2023] AATA 3516

Anota (Migration) [2023] AATA 3516 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Sofia Anota
VISA APPLICANT:  Miss Bashule Kelil Geleto
REPRESENTATIVE:  Ms Sara Khodajoo
CASE NUMBER:  1919692
HOME AFFAIRS REFERENCE(S):         2016046776
MEMBER:Justin Meyer
DATE:12 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
· cl 117.211 of Schedule 2 to the Regulations; and
· cl 117.221 of Schedule 2 to the Regulations.

Statement made on 12 September 2023 at 5:19pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – applicant was an orphan relative of an Australian relative at the time of application – each parent of the visa applicant is deceased – Tribunal is satisfied that the visa applicants cannot be care for by either parent – best interests of children – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 15 April 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 and cl 117.221.
The delegate refused to grant the visa because he was not satisfied with the claimed whereabouts of the applicant’s father and mother. He was not satisfied that the applicant could not be cared for by either parent because each was either dead, permanently incapacitated or of unknown whereabouts. Thus, the applicant did not meet the requirements of Regulations 1.14(b) and did not meet the requirements of cl 117.211 and cl 117.221 of Schedule 2 to the Regulations, the delegate found.
The review applicant appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Dureti Kelil Geleto, the visa applicant’s claimed first cousin.
The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether at…

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 Anota (Migration)

Details

AGLC: Anota (Migration) [2023] AATA 3516
Case: [2023] AATA 3516
Decision Date: 12 September 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicant sought review of a decision made by the Migration Review Tribunal. The central dispute revolved around whether the visa applicant qualified as an "orphan relative" of an Australian relative at the time of application and at the time of the decision, and whether the applicant could not be cared for by either parent.

The Tribunal was required to determine if the visa applicant met the criteria for an orphan relative under clause 117.211 of the Migration Regulations 1994, which necessitates that the applicant is an orphan relative of an Australian relative, or would be but for an adoption by an Australian relative. This also required consideration of the definition of "orphan relative" under regulation 1.14, including whether the applicant was under 18, did not have a spouse or de facto partner, and was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Crucially, the Tribunal had to assess whether the applicant could not be cared for by either parent, as stipulated by regulation 1.14(b), particularly in light of conflicting evidence regarding the parentage and circumstances of the applicant's parents' deaths.

The Tribunal's reasoning focused on the definition of an "orphan relative" and the evidence presented concerning the applicant's familial relationships and the status of her parents. While the applicant's aunt, an Australian citizen, was accepted as the relevant Australian relative, and the applicant met the age and marital status requirements, significant discrepancies arose regarding the identity of the applicant's parents and the cause of their deaths. Conflicting accounts were given about the father's death, and DNA evidence suggested the applicant and her claimed sister might be cousins rather than siblings. The Tribunal acknowledged the possibility of a secret pregnancy and the difficulties in establishing paternity in the applicant's country of origin.

Ultimately, the Tribunal concluded that due to the inconsistencies and complexities in the evidence presented, particularly concerning the applicant's parentage and the circumstances of their deaths, the matter should be remitted for reconsideration. This course of action was taken to allow for further examination of the evidence and to ensure that the applicant's eligibility could be properly assessed in light of the identified issues.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether at the time of application the visa applicant was 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. ‘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, Sofia Geleto (the claimed aunt of the visa applicant), is the relevant Australian relative, and she is an Australian citizen. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant an orphan relative of an Australian relative at the time of this decision. There is evidence that the visa applicant and her sponsor are niece and aunt. Therefore the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicant provided documentary evidence that she is presently aged 17 years. She was under 18 at the time of application. The Tribunal finds that the visa applicant continues to satisfy the criterion in cl.117.211. Accordingly, reg 1.14(a)(i) was met at the time of application and continues to be met at the time of decision.Spouse or de facto partner – reg 1.14(a)(ii) Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Having questioned the witnesses and examined all materials before me there is no evidence that this has occurred. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision. Relative – reg 1.14(a)(iii) 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. Having questioned the witnesses and examined all materials before me there is no evidence that the review applicant (sponsor) is anyone else than the visa applicant’s aunt, who is an Australian citizen. Accordingly, r.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)

Decision

Reasons for decision

The post hearing submission was in part a response to a letter written by the Tribunal under section 359A of the Migration Act 1958 inviting comment or response to certain information which I considered would, subject to comments or response, be the reason, or a part of the reason, for affirming the decision under review. It was noted, however, that the Tribunal had not made up its mind about the information. The particulars of the information were:In the hearing the review applicant (sponsor) stated that visa applicant children’s father – her brother Kelil - died suddenly, of an unknown cause, and not of an illness that she knew of. She said that it could have been a heart complaint. However, the visa applicant Miss Dureti Kelil Geleto in her oral evidence said that he died in car accident. This appears to be a contradiction of fact which might cause the Tribunal to doubt evidence submitted and firm the view that the visa applicants do not meet the requisite criteria.Analysis and conclusions The Tribunal now considers the evidence regarding the claim that the visa applicants cannot be cared for by either parent because each of them is dead (per Regulation 1.14(b)). As mentioned earlier, the case is a problematic one as the evidence has changed from the initial application for the visa and what is claimed before the Tribunal. A question is whether it is plausible that various parties once mistakenly believed that both children’s parents were Ms Mushura Nagesso and Mr Kelil Geleto, who are now deceased. Another question is whether it is plausible that the other visa applicant’s (Dureti’s) mother is Mashura and her father is Kelil. A further question is whether Dureti’s formerly claimed sister (Bashule, the visa applicant) is in fact her cousin. The claim here is that Fatuma was Bashule’s mother and her father was an unknown male. From the standpoint of DNA evidence it is possible that the two girls are cousins in this way. While the Tribunal did not ask the DNA laboratory to test with reference to the girls being possible cousins it is noted that their subsequent advice is that the girls may be related as first cousins and this relationship may be likely. Even though a half sibling relationship was explored and reported, this does not exclude the possibility that the girls are related as biological cousins. Thus, they may well be cousins according to the DNA evidence. The claim is that all of the biological parents are deceased or of unknown whereabouts, thus the Tribunal does not have an option of testing a biological parent. The Tribunal also considers that the visa applicant’s (Bashule’s) mother secretly was pregnant and died to be a possible scenario. There is nothing on the file that rules this out. Common knowledge tells us that unplanned pregnancies frequently occur, and teenagers and their families can try to hide this, and little if anything might be known about the biological father. I note that Ethiopia is a traditional society, where people can frown on such situations. In a developing country there are rarely the means of establishing paternity and pursuing a father for parental and financial obligations.

Ratio Decidendi

Legal Principle Established

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