Bati (Migration) - [2021] AATA 4542

Bati (Migration) [2021] AATA 4542 (9 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Geda Korme Bati
VISA APPLICANT:  Mr Nuho Korme Bati
CASE NUMBER:  1834808
HOME AFFAIRS REFERENCE(S):          OSF2017023780
MEMBER:M. Edgoose
DATE:9 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 09 November 2021 at 11:11am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of parents – court documents – validity of death certificates – late issuance of a death certificate – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14
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 Home Affairs on 8 November 2018 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 14 December 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 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211 and cl 117.221.
The delegate refused to grant the visa because the applicant did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant’s parents are deceased.
The review applicant appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nuho Korme Bati the visa applicant and Mr Yahiya Hassen a friend of the review applicant.The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.
For the following reasons, the Tribunal has concluded that the under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 Bati (Migration)

Details

AGLC: Bati (Migration) [2021] AATA 4542
Case: [2021] AATA 4542
Decision Date: 9 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The applicant sought to demonstrate that they were an orphan relative of an Australian relative, a criterion for the visa. The Tribunal was tasked with determining whether the applicant met the requirements of the Migration Regulations 1994, specifically concerning the definition of an "orphan relative" and the circumstances under which a parent is considered unable to provide care.

The central legal issue before the Tribunal was 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. This required assessing whether the applicant's parents were deceased, permanently incapacitated, or of unknown whereabouts, as stipulated by regulation 1.14(b) of the Migration Regulations 1994. The Tribunal also had to consider the evidentiary requirements for establishing the death of parents, particularly in light of the availability of official death certificates.

The Tribunal reasoned that the applicant had failed to satisfy the definition of an orphan relative. While the applicant submitted court documents from Ethiopia to evidence the death of their parents, the delegate had found these insufficient, noting that official death certificates were available. The applicant, when invited to comment, acknowledged an unawareness of the required documentation and confirmed that death certificates were indeed available at the time of application. Consequently, the Tribunal placed significant weight on the delegate's findings and concluded that the applicant had not provided adequate proof of their parents' deaths, thus failing to meet the criteria for the Subclass 117 visa. 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 under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEIs 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, Mr Geda Korme Bati, is the relevant Australian relative. 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.No parental care – reg 1.14(b) 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. According to the delegate’s decision the delegate was not satisfied with the documents the review applicant submitted to support that his claims that his parents were deceased. The primary document the review applicant submitted to the delegate was a court document from The Court of Goro Woreda Maliyu Burka Bench dated 16 October 2017. The delegate found that the court documents were insufficient evidence of the visa applicants parents claimed deaths given that official death certificates can be obtained from the relevant issuing authorities in Ethiopia. At hearing the Tribunal invited the review applicant to comment on this claim. The review applicant informed the Tribunal that he was not aware of the type of documents and their importance required to make such an application. The review applicant confirmed that death certificates were available at the time of application. Given the review applicants explanation the Tribunal places significant weight on the delegates findings that death certificates were available at time of application.

Decision

Reasons for decision

For these reasons, 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.M. EdgooseMemberATTACHMENT – 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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