Haidari (Migration) - [2024] AATA 100

Haidari (Migration) [2024] AATA 100 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Murtaza Hussain Haidari
VISA APPLICANTS:  Mr Rohid Haidari
Mr Ahad Haidari
REPRESENTATIVE:  Mr Rasheed Qasimi (MARN: 1575435)
CASE NUMBER:  2313902
HOME AFFAIRS REFERENCE(S):          BCC2021/1737285
MEMBER:Brendan Darcy
DATE:17 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations.

Statement made on 17 January 2024 at 5:10pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – mother’s medical condition – permanently incapacitated – Taliban interim government in Afghanistan – availability of medical reports in Iran for Afghan citizens – best interests of the visa applicant – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211; rr 1.03, 1.14
CASES
Hagos v MIAC [2008] FMCA 1178
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 7 August 2023 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 3 September 2021. 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) (the Regulations). Relevantly to this case, they include cl 117.211.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 of Schedule 2 to the Regulations because the definition of Orphan Relative as set out is regulation 1.14 was not met at the time of application.
The review applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Wajihal Khoshiwa, the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The review applicant (or the sponsor), Murta Hussain Haidari, was born on 21 December 1990 in Logar Province in Afghanistan. He migrated to Australia as an irregular maritime arrival in 2012 and was granted a protection visa in the same year. In April 2023, the applicant was conferred Australian citizenship. The sponsor is ethnically Takij 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 Haidari (Migration)

Details

AGLC: Haidari (Migration) [2024] AATA 100
Case: [2024] AATA 100
Decision Date: 17 January 2024

CaseChat Overview and Summary

This matter concerned a review of a decision regarding applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative). The review applicant, Murta Hussain Haidari, an Australian citizen, was the sponsor for his younger siblings, who were the visa applicants. The core of the dispute revolved around whether the visa applicants met the criteria for an orphan relative visa, specifically concerning the status and capacity of their parents.

The Tribunal was required to determine whether the visa applicants could be cared for by either parent, given that their father was missing and their mother suffered from severe medical conditions rendering her permanently incapacitated. Additionally, the Tribunal needed to consider whether granting the visas would be in the best interests of the visa applicants, a crucial criterion for this visa subclass. The availability and adequacy of medical evidence concerning the mother's condition, particularly in the context of her location in Iran, were also central to the assessment.

The Tribunal found that the evidence presented, including medical reports and statements from the visa applicants and the sponsor, indicated that the mother was permanently incapacitated and unable to care for the children. While the father's whereabouts remained unknown, the Tribunal concluded that the first visa applicant met the criteria under cl 117.211 of Schedule 2 to the Migration Regulations 1994. Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, directing that the first named visa applicant met the specified criteria.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The review applicant (or the sponsor), Murta Hussain Haidari, was born on 21 December 1990 in Logar Province in Afghanistan. He migrated to Australia as an irregular maritime arrival in 2012 and was granted a protection visa in the same year. In April 2023, the applicant was conferred Australian citizenship. The sponsor is ethnically Takij and religious a Shia Muslim. A joint application for Class AH Subclass 117 Orphan Relative visas was lodged on 3 September 2021. At the time of lodgement, the first applicant was aged 15 years and 9 months, while the second applicant was aged 14 years and three months. Both claimed that their father was Akhtar Ali Haidari (born in approximately 1960) and his mother Abeda (born in 1969). IN the Form 40CH at question 17, the review applicant did not identity whether one or both the applicants’ parents were dead or their whereabouts was unknown or permanently incapacitated. No documentation or information regarding the applicants’ relationship to each other. On 5 December 2022, the Department sought more information about the the review applicant and the visa applicants, including evidence about the applicants’ parents being deceased, permanently incapacitated or their whereabouts are unknown. It also required them to undertake DNA testing. On 14 March 2023, the Department received the following: · A copy of the applicants’ mother’s passport issued by the authorities in Afghanistan set to expire in 2007;· A referral from Dr Ghazaleh Amjad, (Radiologist – MC No. 135913) for the applicants’ mother dated 15 January 2023 for minor Degenerative Joint Disease (DJD – also known as osteoporosis) in both knees and lumbar;· A prescription for a range of medications by Dr Farshid Dehkhoda (orthopaedic surgeon and specialist) dated 12 February 2023 for the applicants’ mother;· A letter from Dr Farshid Dekkhoda (orthopaedic surgeon and specialist) dated 12 February 2023. As the details about the applicants’ parents were limited, the Department wrote to the applicants for more information on 16 March 2023. On 27 April 2023, the Department received an email from the applicants’ migration agent with a number of attachments which included a copy of the father’s Ministry of National Defence ID Card issued on 18 April 2009 and an accompanying translation into English. The review applicant also provided a more detailed and specific statement on behalf of the second applicant regarding the disappearance of the applicants’ father in tragic circumstances during Eid festival whilst travelling to Logar town, following a long period of threats and harassment by the Taliban. The second applicant submitted the following:‘Since then, I have been the guardian and breadwinner for my two younger brothers. My mother was looking after them but in recent years, she has some severe medical conditions which limit her form being active and taking care of my brothers. My mother does not have the physical and mental capacity to take care of my brothers and to feed them. I hope to bring them over to Australia to live with me and to work with me to support themselves.’‘My father has been missing since I was only four years old and my mother has taken care of me and my brother since his disappearance. In recent years, my mother has been suffering from severe medical conditions and has not been able to take care of us. My brother ,Murtaza Hussain Haidari and his wife have been looking after us and providing us with food and shelter.‘My brother and I are currently living under my brother’s wife’s supervision and care and my brother has been supporting us financially from Australia. He is also contacting us regularly and supporting us emotionally and psychologically. We are currently living in Iran and life is extremely difficult here because we do not know anyone and we are treated poorly by the Iranian authorities and the Iranian public for being an Afghani refugee.‘My mother’s medical condition is getting worse and worse and she cannot even walk properly due to the pain in her lower back and knees. She is also mentally unwell as she is stressing a lot about me and my brother. We are providing medical reports about her health status which confirms that she does not have the physical and mental capacity to take care of me and my brother, Rohid Haidari.‘We would like to request you grant our visas to we can migrate to Australia and live under my older brother’s care and supervision.’

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.DECISION The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:·cl 117.211 of Schedule 2 to the Regulations.Brendan DarcyMemberATTACHMENT – 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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