Farah (Migration) - [2018] AATA 4055

Farah (Migration) [2018] AATA 4055 (31 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Kiin Farah
VISA APPLICANTS:  Ms Sadia Abdulahi Mohamed
Ms Naima Abdulahi Mohamed
Mr Liban Mohamed Hussein
Mr Shafie Abdulahi Mohamed
CASE NUMBER:  1613323
DIBP REFERENCE(S):  2014044563
MEMBER:Kira Raif
DATE:31 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.
Statement made on 31 August 2018 at 2:10pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – applicant’s age at application – no proof of relationship – did not declare relationship of child’s parents – financial support to children – witness declarations – no birth certificates – no death records – absence of record keeping system – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2 cls 117.111, 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 Immigration on 25 July 2016 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 are nationals of Somalia born in 1997, 1998 and 2001 respectively. They applied for the visas on 29 September 2014. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives of the Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hamdi Ahmed. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali 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 decision under review should be affirmed.
Relevant law
At the time the application was made, 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).
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 r.1.14…

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 Farah (Migration)

Details

AGLC: Farah (Migration) [2018] AATA 4055
Case: [2018] AATA 4055
Decision Date: 31 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed decisions not to grant Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), to the applicants. The dispute centred on whether the applicants met the criteria for this visa subclass, which requires proof of orphanhood and a specific relationship to the sponsor.

The primary legal issue before the Tribunal was whether the applicants had satisfied the requirements for the Subclass 117 visa, particularly concerning their age at the time of application and the establishment of the requisite familial relationship. This involved assessing the evidence presented to demonstrate that the applicants were indeed orphans and that their parents were deceased or their whereabouts unknown, as required by the visa regulations.

The Tribunal's reasoning focused on the lack of sufficient evidence to establish the applicants' eligibility. Crucially, there was no proof of the relationship between the applicants and their alleged parents, nor were birth certificates or death records provided. While witness declarations were submitted, and the absence of a formal record-keeping system was noted, these were deemed insufficient to overcome the evidentiary deficiencies. The Tribunal concluded that the criteria for the visa were not met, and no claims were advanced in respect of other visa subclasses within Class AH.

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

Full text does not contain this section.

Decision

Reasons for decision

For the reasons stated above, 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 decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.