Haidari (Migration) - [2017] AATA 2868

Haidari (Migration) [2017] AATA 2868 (18 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammad Salam Haidari
VISA APPLICANTS:  Master Mohammad Zia Haidari
Master Ramazan Ali Haidari
Ms Golsoom Haidari
CASE NUMBER:  1706768
DIBP REFERENCE(S):  2016/036788
MEMBER:Wendy Banfield
DATE:18 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 18 December 2017 at 6:44pm
CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Father’s disappearance and mother’s death – Lack of reliable evidence – Inconsistent information
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.211, 117.221
CASES
EC v MIMIA [2004] FCA 978
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 Immigration on 22 January 2017 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 applied for the visas on 22 August 2016. 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 and cl.117.221.
The delegate refused to grant the visas because the visa applicants (the applicants) did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations because they did not meet the definition of orphan relative in reg. 1.14.
Background
The review applicant claims to be the biological brother of the visa applicants who are living in Kabul, Afghanistan. The review applicant has declared his and the applicant’s mother is deceased and their father is missing, presumed deceased. The visa applicants are said to have lived in Kabul with a cousin since 2014 having moved from their village with their mother after their father’s disappearance because of the Taliban.
The review applicant left Afghanistan following the disappearance of his father and came to Australia in 2015 as a refugee. The remaining family moved to Kabul from their village due to the Taliban. The applicant said he was told by a cousin about the death of his mother in mid-2015 who he believes had a heart attack. A death certificate was obtained on 30 August 2017.
The Department’s decision record made the following findings:
·     The applicant Mohammad Zia made inconsistent claims regarding the process of obtaining his Tazkira;
·     The information contained on the Tazkira document is unreliable due to the ease with which information can be changed and the lack of centralised offices;
·     The applicants demonstrated limited knowledge of the sponsor;
·     The applicants provided conflicting information in relation…

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) [2017] AATA 2868
Case: [2017] AATA 2868
Decision Date: 18 December 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of visa applicants seeking a Child (Migrant) (Class AH) visa, specifically Subclass 117 (Orphan Relative). The sponsor, Mohammad Haidari, claimed the visa applicants were his brothers and sister. The core dispute revolved around whether the applicants met the definition of "orphan relative" as required by the Migration Regulations 1994.

The Tribunal was required to determine two primary legal issues. Firstly, whether the visa applicants were "relatives" of an Australian permanent resident, as defined by the Regulations. Secondly, and crucially, whether the visa applicants could not be cared for by either parent because each parent was deceased, permanently incapacitated, or of unknown whereabouts, as stipulated by Regulation 1.14(b).

The Tribunal reasoned that while the applicants claimed to be siblings of the Australian sponsor, the evidence presented was insufficient to establish this relationship to the Tribunal's satisfaction. Furthermore, the Tribunal found that the applicants had not demonstrated that they could not be cared for by either parent. The Tribunal noted that the definition of permanent incapacity does not extend to a mere refusal or unwillingness to care for a child. Given these findings, the Tribunal concluded that the criteria for the grant of a Subclass 117 visa were not met.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants the Child (Migrant) (Class AH) visas.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicants are orphan relatives of the Australian sponsor.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, Mohammad Haidari is the relevant Australian relative. For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are not orphan relatives of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met, and does not continue 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. Pursuant to r.1.03 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). In the present case, the review applicant stated in the ‘Sponsorship for a child to migrate to Australia’ form that the visa applicants are his brothers and sister. The Department had found the evidence of a sibling relationship between the review applicant and the visa applicants to be inadequate but because their concerns were not confined to the issue of ‘relative’, did not request DNA evidence. The Tribunal notes the applicants have said they are willing to provide DNA evidence, however, the Tribunal is not satisfied there is sufficient evidence the visa applicant’s cannot be cared for by either parent and for this reason, has not asked the parties to undertake DNA testing. No parental care – r.1.14(b) Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

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.Wendy BanfieldMemberATTACHMENT – 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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