Biyo (Migration) - [2024] AATA 3019

Biyo (Migration) [2024] AATA 3019 (15 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Madin Biyo
VISA APPLICANTS:  Mr Mohamed Sultan Hamed
Mr Tahir Sultan Hamed
CASE NUMBER:  2116535
HOME AFFAIRS REFERENCE(S):          2017024456 OSF2017024456
MEMBER:Jason Pennell
DATE:15 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 15 May 2024 at 12.11pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – aunt and nephews – two birth certificates for each applicant, with different dates – one date makes applicants over 18, the other under 18 – parents dead, permanently incapacitated or of unknown whereabouts – death certificates for applicants’ parents not genuine – documents provided by brother and review applicant’s limited knowledge about them – no other independent documentation – best interests of children – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cls 117.211, 117.221, 117.223

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 September 2021 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 applied for the visas on 3 May 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, cl 117.221 and cl 117.223 of Schedule 2 to the Regulations.
The delegate refused to grant the visas because the first named visa applicant (the visa applicant) did not meet the requirements as prescribed in cl 117.211, cl 117.221 and cl 117.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant was an orphan and under 18 years of age at the time of the application.[1]
[1] Decision record, Application ID 40628851001 dated 8 September 2021; Dept File No OSF2017024457 Doc ID: 9263770.
The review applicant appeared before the Tribunal on 22 February 2024 to give evidence and present arguments. 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 decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the…

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 Biyo (Migration)

Details

AGLC: Biyo (Migration) [2024] AATA 3019
Case: [2024] AATA 3019
Decision Date: 15 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Ms Biyo for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The applicants were Ms Biyo's nephews, and the dispute centred on their eligibility for the visa, which requires applicants to be under 18 years of age. The core of the issue was the conflicting birth dates provided for the nephews, with one set of documents indicating they were over 18 and another indicating they were under 18. The visa criteria also require that the applicants' parents be dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal was required to determine whether the applicants met the age requirement for the Subclass 117 visa, given the contradictory birth documentation. Furthermore, the Tribunal had to assess whether the applicants' parents were deceased, permanently incapacitated, or of unknown whereabouts, in light of concerns about the genuineness of provided death certificates. The Tribunal also considered the best interests of the children and relevant country information in its determination.

In its reasoning, the Tribunal noted the lack of independent and credible evidence to support the younger birth dates. The death certificates for the applicants' parents were found not to be genuine, and the limited knowledge of the review applicant (Ms Biyo's brother) regarding these documents further diminished their credibility. The Tribunal found that the evidence did not establish that the applicants met the age requirement or that their parents were deceased. Consequently, the Tribunal affirmed the decision under review.

Orders