Desta (Migration) - [2019] AATA 3872

Desta (Migration) [2019] AATA 3872 (21 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Alemitu Midesqa Desta
VISA APPLICANTS:  Miss Yemisrach Sisay Abera
Miss Ager Sisay Abera
Master Yonata Sisay Abera
Miss Netsanet Sisay Abera
Miss Edilawit Sisay Abera
CASE NUMBER:  1800779
DIBP REFERENCE(S):  2016046564 OSF2016/046564
MEMBER:Stavros Georgiadis
DATE:21 May 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration in respect of all applicants, with the direction that the applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl.117.211 of Schedule 2 to the Regulations.

Statement made on 21 May 2019 at 5:10pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – father permanently incapacitated to care for children – mental incapacity – orphan relative of Australian relative – medical condition – review applicant visa applicants’ aunt – whereabouts of applicants’ mother unknown – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schdeule 2, cls 117.111, 117.211, 117.221

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 Immigration on 4 December 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 5 January 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 (the Regulations). Relevantly to this case, they include cl.117.211.
The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicants’ father is permanently incapacitated and therefore, not satisfied that the applicants cannot be cared for by either parent for reasons of death, permanent incapacity or unknown whereabouts - r.1.14(b).
The review applicant (sponsor) appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rosa Dagatchew who is the sponsor’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) 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 matter should be remitted for reconsideration.
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 Desta (Migration)

Details

AGLC: Desta (Migration) [2019] AATA 3872
Case: [2019] AATA 3872
Decision Date: 21 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicants were nieces and nephews of Ms Alemitu Midesqa Desta, an Australian citizen. The core of the dispute revolved around whether the applicants qualified as "orphan relatives" under the Migration Regulations 1994, given the circumstances of their parents. The decision was made by a Member of the Tribunal.

The Tribunal was required to determine if the visa applicants met the criteria set out in clause 117.211 of Schedule 2 to the Regulations, which defines an "orphan relative" of an Australian relative. This involved assessing whether the applicants had not turned 18, did not have a spouse or de facto partner, and were a relative of the Australian sponsor. Crucially, the Tribunal also had to consider whether the applicants could not be cared for by either parent because each parent was either dead, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the best interests of the applicants.

The Tribunal found that the applicants were indeed relatives of the Australian sponsor, Ms Desta, who was their maternal aunt. It was established that all applicants were under 18 at the time of application and continued to meet this criterion, with one applicant having turned 18 due to the passage of time during the review process, which the Tribunal accepted. The applicants also did not have spouses or de facto partners. The Tribunal accepted that the father was permanently incapacitated and the whereabouts of the mother were unknown, thus satisfying the definition of an orphan relative.

Consequently, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration by the Minister. The remittal was with the direction that the applicants met the criteria under clause 117.211 of Schedule 2 to the Regulations, allowing for the assessment of any remaining criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 the applicants meet cl.117.211 of Schedule 2 to the Regulations.Is the visa applicant an orphan relative of an Australian relative? Clause 117.211 requires that at the time of application a 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 years: cl.117.221. ‘Orphan relative’ is defined in r.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): r.1.03. In the present case, the relationship is one of maternal aunt / nephew and nieces where Ms Alemitu Midesqa Desta (the aunt) is the relevant Australian relative sponsor. Her Australian citizenship was conferred in 2014. For the reasons below, the visa applicants are each an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicants are each 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.Age – r.1.14(a)(i) Regulation 1.14(a)(i) requires that a visa applicant has not turned 18. A consideration of the documents before the Tribunal shows that all the applicants were aged less than 18 years at the time of visa application on 5 January 2016. Since that time, the first named applicant, Yemisrach Sisay Abera, has turned 18 (DOB 18 May 2000) but the Tribunal accepts this has occurred only because of the passage of time pending the review decision outcome. Accordingly r.1.14(a)(i) was met at the time of application in respect of all named applicants and continues to be met at the time of decision with the exception of the first named visa applicant.Spouse or de facto partner – r.1.14(a)(ii) Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The Tribunal notes the age of the applicants all being under 18 years at the time of application. The accepted oral evidence before the Tribunal is that none of the applicants are married or in a de facto relationship as there is no evidence to suggest otherwise. The Tribunal finds that none of the visa applicants had a spouse or de facto partner at the time of application and continue as such at the time of decision. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision. Relative – r.1.14(a)(iii)

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa in respect of all applicants.DECISION The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration in respect of all applicants, with the direction that the applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:·cl.117.211 of Schedule 2 to the Regulations.Stavros GeorgiadisMemberATTACHMENT – 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

Full text does not contain this section.