Gbala (Migration) - [2025] ARTA 307

GBALA (MIGRATION) [2025] ARTA 307 (7 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Yoryor Gbala
Visa Applicants:  Mr Joe Gbalah
Mr Elvis Gbala
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2422610

Tribunal:General Member J Clarke
Place:Melbourne
Date: 7 March 2025
Decision:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, in accordance with the order that each visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations;
·cl 117.221 of Schedule 2 to the Regulations; and
·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations.

Statement made on 07 March 2025 at 4:41pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – sponsor half-sister of applicants – parents dead or of unknown whereabouts – money transfers after claimed dates of death and disappearance – medical certificate of death provided with application and official certificate after receiving department’s natural justice letter – money transfers to people with similar names as parents, and identity documents provided – aunt’s attempts to trace father – Red Cross tracing case now closed – DNA testing supports claimed relationships – best interests of applicants – socio-economic and security conditions – older applicant now over 18 – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 348(1)
Migration Regulations 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cls 117.111, 117.211(a), 117.221, 117.223, Schedule 4, criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is a combined application for review of two decisions made on 27 June 2024 by the same delegate of the Minister for Home Affairs to refuse to grant the two visa applicants Child (Migrant) (Class AH) Subclass 117 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
At the time of this decision, the review applicant, Ms Gbala, is a 30-year-old Australian citizen.[1] It is claimed that she is the half-sister of the visa applicants, as they share the same mother, but the review applicant’s father is not the father of the two visa applicants.
[1] A copy of the bio-pages of her Australian passport is on the Department’s file.
On 2 February 2022, the visa applicants Joe and Elvis—who are claimed biological brothers—applied for the visas. The review applicant is the sponsor for each visa applicant.
At the time of application for the visas, 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 (Orphan Relative) 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, which is a time of application criterion, and…

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 Gbala (Migration)

Details

AGLC: Gbala (Migration) [2025] ARTA 307
Case: [2025] ARTA 307
Decision Date: 7 March 2025

CaseChat Overview and Summary

The case involves Joe and Elvis Gbala, who applied for a subclass 117 (Orphan Relative) visa. They claimed to be orphans with their parents deceased or missing, and their sponsor was their half-sister. The applicants provided evidence such as death certificates, money transfers, and identity documents. The matter was remitted for reconsideration after the Red Cross tracing case was closed and DNA testing confirmed their relationships. The legal issues were whether the applicants met the eligibility criteria for the visa at the time of application and at the time of the decision. The Tribunal reviewed the evidence, including the applicants' birth certificates, passports, and the declarations regarding their marital status.

The Tribunal concluded that at the time of the application, both applicants met the criteria for the subclass 117 visa. They were both under 18 years of age and did not have spouses or de facto partners. However, at the time of the decision, Joe was over 18, which affected his eligibility. Elvis remained eligible as he was still under 18. The Tribunal found that the applicants were orphan relatives of an Australian relative and that the best interests of the applicants would be served by the visa grant. The socio-economic and security conditions in their home country also supported the visa grant.

The Tribunal set aside the decisions under review and remitted the matters for reconsideration, taking into account the evidence and findings presented. The Tribunal highlighted that the applicants were orphans of an Australian relative, met the age and marital status requirements at the time of application, and that the best interests of the applicants, as well as the conditions in their home country, supported the grant of the visas. The decision did not specify the exact terms of the visa grant but indicated that the matters should be reconsidered in light of the Tribunal's findings.

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 set aside, and the matters should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In considering and deciding the various issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file as well as to the oral evidence given at the hearing.Consideration of cl 117.211 and cl 117.221 The first issue for determination is whether, at the time that the applications were made for the visas on 2 February 2022, Joe and Elvis each met cl 117.211. In the circumstances of this case, the Tribunal considers that it is also appropriate to make findings about whether, at the time of this decision, they each meet cl 117.221 as well.Are Joe and Elvis each an orphan relative of an Australian relative? For the reasons below, the Tribunal finds that:·at the time of application for the visas on 2 February 2022, Joe and Elvis were each an orphan relative of an Australian relative and thus met cl 117.211(a); ·at the time of this decision, Elvis is an orphan relative of an Australian relative and thus continues to satisfy the criterion in cl 117.211. Therefore, he meets cl 117.221(a); and·at the time of this decision, Joe does not continue to satisfy the criterion in cl 117.221 only because he has turned 18. Thus, he meets cl 117.221(b). Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. In each respective primary decision, the delegate noted that each visa applicant had lodged copies of their birth certificate and Liberian Passport in support of their claimed date of birth and age. Based on this evidence, the delegate had been satisfied that, at the time of application for the visas on 2 February 2022, Joe and Elvis were each under 18 years of age (Joe was 17 years of age and Elvis was 14 years of age). The delegate found that, in each case, reg 1.14(a)(i) was met. In this review, it was reiterated in the submissions of 6 November 2024 that, at the time of application, both visa applicants were under 18 years of age and the Tribunal was referred to the copies of the bio-pages of the passports that had previously been provided. At the time of this decision, there is no information or evidence before the Tribunal to suggest that each visa applicant’s date of birth is not what they claim it to be. Accordingly, the Tribunal did not consider it necessary to raise this issue at the hearing. Based on the evidence before it, the Tribunal finds that, at the time of application, reg 1.14(a)(i) was met by both visa applicants. At the time of this decision, Elvis is 17 years of age and so continues to meet reg 1.14(a)(i). The evidence is that, at the time of this decision, Joe is 20 years of age.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. In each respective primary decision, the delegate noted that each visa applicant had, at Question 14 of Form 47CH—Application for migration to Australia by a child, declared that, at that time, he had never been married or in a de facto relationship. Based on this evidence, the delegate had been satisfied that, at the time of application on 2 February 2022, Joe and Elvis each met reg 1.14(a)(ii).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In considering and deciding the various issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file as well as to the oral evidence given at the hearing.Consideration of cl 117.211 and cl 117.221 The first issue for determination is whether, at the time that the applications were made for the visas on 2 February 2022, Joe and Elvis each met cl 117.211. In the circumstances of this case, the Tribunal considers that it is also appropriate to make findings about whether, at the time of this decision, they each meet cl 117.221 as well.Are Joe and Elvis each an orphan relative of an Australian relative? For the reasons below, the Tribunal finds that:·at the time of application for the visas on 2 February 2022, Joe and Elvis were each an orphan relative of an Australian relative and thus met cl 117.211(a); ·at the time of this decision, Elvis is an orphan relative of an Australian relative and thus continues to satisfy the criterion in cl 117.211. Therefore, he meets cl 117.221(a); and·at the time of this decision, Joe does not continue to satisfy the criterion in cl 117.221 only because he has turned 18. Thus, he meets cl 117.221(b). Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. In each respective primary decision, the delegate noted that each visa applicant had lodged copies of their birth certificate and Liberian Passport in support of their claimed date of birth and age. Based on this evidence, the delegate had been satisfied that, at the time of application for the visas on 2 February 2022, Joe and Elvis were each under 18 years of age (Joe was 17 years of age and Elvis was 14 years of age). The delegate found that, in each case, reg 1.14(a)(i) was met. In this review, it was reiterated in the submissions of 6 November 2024 that, at the time of application, both visa applicants were under 18 years of age and the Tribunal was referred to the copies of the bio-pages of the passports that had previously been provided. At the time of this decision, there is no information or evidence before the Tribunal to suggest that each visa applicant’s date of birth is not what they claim it to be. Accordingly, the Tribunal did not consider it necessary to raise this issue at the hearing. Based on the evidence before it, the Tribunal finds that, at the time of application, reg 1.14(a)(i) was met by both visa applicants. At the time of this decision, Elvis is 17 years of age and so continues to meet reg 1.14(a)(i). The evidence is that, at the time of this decision, Joe is 20 years of age.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. In each respective primary decision, the delegate noted that each visa applicant had, at Question 14 of Form 47CH—Application for migration to Australia by a child, declared that, at that time, he had never been married or in a de facto relationship. Based on this evidence, the delegate had been satisfied that, at the time of application on 2 February 2022, Joe and Elvis each met reg 1.14(a)(ii).