Gebreil (Migration) - [2023] AATA 3791

Gebreil (Migration) [2023] AATA 3791 (8 November 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Kedir Mohammed Nur Gebreil
VISA APPLICANTS:  Master Hussen Kelifa Sonesa
Master Hassen Kelifa Sonesa
REPRESENTATIVE:  Mr David Harvey
CASE NUMBER:  1920601
HOME AFFAIRS REFERENCE(S):          2017022853
MEMBER:Margie Bourke
DATE OF DECISION:  8 November 2023
DATE CORRIGENDUM
SIGNED:13 November 2023
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

Paragraph 70 of the Decision Record has been updated to read as follows:
Apart from the written responses to the s.359A information in the form of a submission from the review applicant's representative dated 3 November 2023 and received 3 November 2023, the tribunal did not receive any further information, evidence or documents from the review applicant after the hearing, despite the request for time in which to provide further information from the review applicant’s representative, and the Tribunal allowing time for the review applicant to provide further information, evidence or documents that are relevant to the review. The tribunal did not receive a request for an extension of time to provide the further information. The tribunal extended the time for the post hearing responses from 31 October 2023 to 3 November 2023, so all responses from the review applicant were due on the same day.

DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Kedir Mohammed Nur Gebreil
VISA APPLICANTS:  Master Hussen Kelifa Sonesa
Master Hassen Kelifa Sonesa
REPRESENTATIVE:  Mr David Harvey
CASE NUMBER:  1920601
HOME AFFAIRS REFERENCE(S):          2017022853
MEMBER:Margie Bourke
DATE:8 November 2023
PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 08 November 2023 at 10:26am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – parents deceased, permanently incapacitated or whereabouts unknown – limited, inconsistent and unreliable evidence about family composition and deaths of parents – mother listed on school enrolment after date on death certificate – no original, untranslated versions of some documents provided – no satisfaction that mother deceased – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cls 117.111, 117.211(a), 117.221
CASE
Nguyen v MIMA (1998) 158 ALR 639
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 17 July 2019 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 30 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)…

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 Gebreil (Migration)

Details

AGLC: Gebreil (Migration) [2023] AATA 3791
Case: [2023] AATA 3791
Decision Date: 8 November 2023

CaseChat Overview and Summary

This matter concerned an application for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), by two twin siblings. The applicants claimed that both their parents were deceased. The review applicant, who was the uncle of the visa applicants and an Australian citizen, sponsored their application. The Administrative Appeals Tribunal (AAT) was required to determine whether the visa applicants met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the visa applicants satisfied regulation 1.14(b), which requires that an applicant cannot be cared for by either parent because each parent is dead, permanently incapacitated, or their whereabouts are unknown. The Tribunal also considered the requirements of clause 117.211, which mandates that the visa applicant be an orphan relative of an Australian relative at the time of application and continue to satisfy this criterion at the time of decision, unless they have turned 18.

The Tribunal found that while the DNA evidence confirmed the review applicant was the uncle and the visa applicants were siblings, there was insufficient reliable evidence to establish that both parents were deceased. Specifically, the Tribunal noted inconsistencies in the provided documentation, including a mother being listed on school enrolment records after the date on a death certificate, and the absence of original, untranslated documents. The Tribunal concluded that it was not satisfied that the mother was deceased, and therefore the criterion under regulation 1.14(b) was not met. Consequently, the Tribunal affirmed the decision not to grant the Child (Migrant) (Class AH) visas.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicants meet the requirements of reg 1.14(b) in relation to the definition of orphan relative. Reg 1.14(b) requires that the visa applicant cannot be cared for by either parent because each parent is either dead, permanently incapacitated or of unknown whereabouts. In this review the two visa applicants are siblings, and claim that both their parents are deceased. The two visa applicants are twins, and therefore have the same date of birth, in September 2001.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. There is no evidence before the Tribunal that the visa applicants have been adopted by an Australian relative, and therefore the requirements of cl.117.211(b) do not apply. The Tribunal has considered whether the visa applicants are orphan relatives of an Australian relative for the purposes of meeting the requirements of cl.117.211(a) at the time of application The Department invited the visa applicants and the review applicant (their sponsor) to participate in DNA testing. Based on the DNA report dated 14 January 2019 the Tribunal is satisfied that the review applicant, is the uncle of the two visa applicants, and the two visa applicants are biological siblings. Based on the certificate of Australian citizenship granted 30 October 2008, the Tribunal is satisfied that the review applicant is an Australian citizen. ‘Orphan relative’ is defined in reg 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): reg 1.03. In the present case, the review applicant is an Australian citizen and the uncle of the visa applicants and therefore is the relevant Australian relative of the visa applicants. The Tribunal has considered whether the visa applicants are orphan relatives of an Australian relative at the time of application. The Tribunal has set out the evidence, and its considerations and assessment of the evidence in relation to whether the visa applicants meet the requirement of orphan relative in reg 1.14(b) below in this decision record.No parental care – reg 1.14(b)

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 decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Margie BourkeMemberATTACHMENT – 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.