Fofana (Migration) - [2018] AATA 394

Fofana (Migration) [2018] AATA 394 (1 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Ellen Fofana
VISA APPLICANT:  Ms Yvonne Kromah
CASE NUMBER:  1615733
DIBP REFERENCE(S):  F2015/046282 OSF2015/046282
MEMBER:A B Baker
DATE:1 March 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 01 March 2018 at 11:29am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Visa applicant – Niece of review applicant’s half- sister – Visa applicant not adopted by the review applicant
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14 Schedule 2 cls 117.111, 117.211, 117.221
CASES
Nguyen v MIMA (1998) 158 ALR 639
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 19 July 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 29 September 2015. 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 visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant was a relative of the review applicant within the meaning of the Migration Act. The review applicant claims the visa applicant is her niece however she had not previously declared either of the parents of the visa applicant as a sibling in any of her previous visa applications.
The review applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Liberian English 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.
BACKROUND
The parties provided the Tribunal with a copy of the delegate’s decision along with their application.
The visa applicant is a citizen of Liberia born on 4 September 2009 (8 years old). On her birth certificate her mother is registered as Famatta Koille and Varfee Kromah.
The review applicant is a citizen of Australia by grant on 17 September 2008 born in Liberia on 23 January 1973 (44 years old). She arrived in Australia on a subclass 200 (refugee visa) in April 2006. She is a nurse and has been running a…

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 Fofana (Migration)

Details

AGLC: Fofana (Migration) [2018] AATA 394
Case: [2018] AATA 394
Decision Date: 1 March 2018

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically Subclass 117 (Orphan relative), before the Tribunal. The review applicant sought to establish that the visa applicant, her niece, was an orphan relative of an Australian relative. The core of the dispute revolved around whether the visa applicant met the definition of an "orphan relative" of an "Australian relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant was a relative of the review applicant within the meaning of the Migration Act and Regulations. Specifically, it needed to assess if the visa applicant satisfied the criteria under clause 117.211, which requires the applicant to be an orphan relative of an Australian relative, or not an orphan relative only because they have been adopted by an Australian relative. The definition of "orphan relative" and "Australian relative" under the Regulations, as well as the definition of "relative" itself, were central to this determination.

The Tribunal considered evidence provided by the review applicant, including a DNA test, financial transfers, and a statutory declaration, alongside information from previous visa applications. The review applicant initially claimed to be the aunt of the visa applicant. However, discrepancies in the names of the visa applicant's parents on different documents and the review applicant's failure to declare the visa applicant's parents as siblings on prior applications raised concerns. Ultimately, the review applicant admitted that the visa applicant was not related to her but to her sister, Aisha, who had arrived in Australia earlier. Based on this admission and the lack of established familial connection, the Tribunal found that the visa applicant was not an orphan relative of an Australian relative at the time of application or at the time of the decision.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, as the criteria for the Subclass 117 visa were not met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Subsequent to the hearing the review applicant provided the Tribunal with further documents including the results of a DNA test, university fees payment, money transfers from the review applicant to the visa applicant and a statutory declaration. Where relevant that evidence is considered and reflected in the findings and reasons below.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is a relative of the review applicant within the meaning of the Migration Act.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 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 review applicant claims to be the Aunt of the visa applicant. 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 continues not to be met at the time of decision.Relative – r.1.14(a)(iii) Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa. The visa applicant claims to be the niece of the review applicant however the review applicant did not declare either of the visa applicant’s parents as siblings on her previous visa applications or sponsorships. The names of the visa applicant’s parents differ from her birth certificate and the visa application form. When asked about this at the hearing the review applicant stated that it might be a typographical error. The review applicant’s explanation about these differences was not persuasive and after an extensive discussion the applicant admitted that the visa applicant was not related to her but to her sister, Aisha who arrived in Australia earlier this year. Prior to that Yvonne was looked after by Aisha.

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.A B BakerSenior MemberATTACHMENT – 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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