Deng (Migration) - [2022] AATA 1655

Deng (Migration) [2022] AATA 1655 (4 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Ms Nyatot Pom Deng

VISA APPLICANTS:  Miss Nyalang Pom Deng
Miss Nyawal Pom Deng
CASE NUMBER:  2112851
HOME AFFAIRS REFERENCE(S):          2017022784
MEMBER:Christine Kannis
DATE:4 March 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 04 March 2022 at 6:36am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – there was no probative evidence of the claimed sibling relationship between the review applicant and the visa applicants – DNA testing results – Tribunal is not satisfied that each of the visa applicants is a relative of an Australian relative – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.211,117.221

CASES
EC v MIMIA [2004] FCA 978
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 9 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 26 June 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 visas were refused because the delegate was not satisfied that the visa applicants were relatives of the review applicant and therefore, they did not meet cl 117.211.
The review applicant appeared before the Tribunal on 18 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants by telephone from Ethiopia. The Tribunal hearing was conducted with the assistance of an interpreter in the Nuer and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicants are orphan relatives of an Australian relative.
Are the visa applicants orphan relatives 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…

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 Deng (Migration)

Details

AGLC: Deng (Migration) [2022] AATA 1655
Case: [2022] AATA 1655
Decision Date: 4 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Nyatot Pom Deng, who sought to have decisions not to grant Child (Migrant) (Class AH) visas to certain visa applicants affirmed. The core dispute concerned whether the visa applicants qualified as "orphan relatives" of Ms Deng, an Australian relative, under the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicants met the criteria for an orphan relative as defined in regulation 1.14 of the Migration Regulations 1994, specifically whether they were a relative of an Australian relative, had not turned 18, did not have a spouse or de facto partner, could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts, and whether granting the visa would be in the applicants' best interests. The Tribunal also had to consider whether these criteria were met at the time of application and continued to be met at the time of the decision.

The Tribunal found that while the visa applicants met the age and marital status requirements, there was no probative evidence to establish the claimed sibling relationship between the visa applicants and the review applicant, Ms Deng. The Tribunal noted that DNA testing results were not provided or were insufficient to satisfy this crucial element of the definition of a "relative" under regulation 1.14(a)(iii). Consequently, the Tribunal concluded that the visa applicants were not orphan relatives of an Australian relative at the time of application or at the time of the decision.

As the criteria for the grant of a Subclass 117 visa were not met, the Tribunal affirmed the decisions not to grant the visa applicants the Child (Migrant) (Class AH) visas.

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 decisions under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicants are orphan relatives of an Australian relative. Are the visa applicants orphan relatives 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 Nyatot Pom Deng, is the relevant Australian relative. ‘Orphan relative’ is defined in reg 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 reg 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 reg 1.14 then he or she cannot meet cl 117.211. For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are not orphan relatives 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 – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The passport of visa applicant Nyalang Pom Deng indicates her date of birth is 11 November 2001. The passport of visa applicant Nyawal Pom Deng passport indicates her date of birth is 25 January 2005. At hearing the review applicant and the visa applicants confirmed the visa applicants’ dates of birth are as shown in their passports. The Tribunal has no evidence that the date of birth of each visa applicant is otherwise than as stated. Accordingly, reg 1.14(a)(i) was met at the time of application. At the time of decision, Nyalang Pom Deng is 20 and Nyawal Pom Deng is 17.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. At hearing the review applicant and the visa applicants confirmed that the visa applicants do not have a spouse or de facto partner and the Tribunal so finds. Accordingly, reg 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)

Decision

Reasons for decision

For these reasons, the criteria for the grant of a Subclass 117 visa are not met by the visa applicants. There have been no claims advanced in respect of the other visa subclasses in Class AH by the visa applicants.DECISION The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.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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