Hassan (Migration) - [2022] AATA 2556

Hassan (Migration) [2022] AATA 2556 (16 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Abdirizak Ahmed Hassan
VISA APPLICANTS:  Mr Mahamed Bile Ahmed
Mr Abdilahi Bile Ahmed
Ms Nasteho Bile Ahmed
REPRESENTATIVE:  Ms Tania Mykyta (MARN: 1575391)
CASE NUMBER:  1836082
HOME AFFAIRS REFERENCE(S):          2016047283 OSF2016/047283
MEMBER:M. Edgoose
DATE:16 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 16 June 2022 at 1:07pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death certificates – witness statements – no evidence of adoption – visa applicant has turned 18 – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14
CASES
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 16 October 2018 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 2 November 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 (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.
The review applicant appeared before the Tribunal on 16 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mahamed Bile Ahmed the primary visa applicant, a Mr Abditajir Ahmed Hassan the brother of the visa applicant’s father. A third witness was listed to appear, a Mr Afdhub Abdi Ali the brother of the visa applicant’s mother, but after four attempts to make contact with him the Tribunal decided that it would not continuing making further attempts and therefore would refer to the written statements by the witness the were email through during the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 Hassan (Migration)

Details

AGLC: Hassan (Migration) [2022] AATA 2556
Case: [2022] AATA 2556
Decision Date: 16 June 2022

CaseChat Overview and Summary

This matter concerned an appeal before the Migration Review Tribunal regarding a Subclass 117 (Orphan Relative) visa application. The applicant sought to be recognised as an orphan relative of an Australian relative. The Tribunal was required to determine whether the visa applicant met the criteria for the visa, specifically whether they were an orphan relative of an Australian relative at the time of application and at the time of the decision, and whether they could not be cared for by either parent.

The Tribunal considered the definition of an "orphan relative" under regulation 1.14 of the Migration Regulations 1994, which requires that the applicant be under 18, not have a spouse or de facto partner, be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and be unable to be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also noted that the applicant must continue to satisfy this criterion at the time of decision, or not do so only because they have turned 18, as per regulation 117.221. The Tribunal found that the applicant had turned 18, and therefore the primary criterion of being an orphan relative was not met. Furthermore, the Tribunal placed limited weight on a statutory declaration submitted by the applicant, as it was unsigned and dated significantly prior to its submission, and no further physical evidence was provided to substantiate claims of parental death or permanent incapacity.

Ultimately, the Tribunal concluded that the criteria for the grant of a Subclass 117 visa were not met. The Tribunal affirmed the decision not to grant the visa.

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 EVIDENCEIs 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 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, is uncle the relevant Australian relative. 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 does not continue to be met at the time of decision.No parental care – reg 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. On 8 December 2018 the review applicant submitted to the Tribunal an unsigned statutory declaration to the Tribunal. The Tribunal notes that the statutory declaration submitted was dated 19 October 2016. Given that the statutory declaration was not signed and was submitted approximately 2 years after it has been written with the assistance of an unaccredited translator the Tribunal gives this submission minimal weight. The Tribunal has given regard to the review applicant’s representative statement of facts, issues and contentions that was submitted prior on 10 June 2022. Within this submission the representative made reference to a copy of the above statutory declaration which had actually been submitted to the Department prior to the delegates decision being made. The Tribunal located the said statutory declaration on the Department file, which was both signed and dated, 19 October 2016. The Tribunal has therefore considered the information contained within this statutory by the review applicant. Although the representative has indicated that particular information mentioned with in the statutory declaration is important the Tribunal is of the view that the review applicant has not provided any further evidence to support his claim that he was separated from his family because of the war when he was around 17 years of age, and that he had heard his family had survived and were in Ethiopia where he located them. At hearing the Tribunal asked the review applicant if he had any further documents to support his claim that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The review applicant confirmed at hearing that he had no physical evidence regarding the deaths of his brother and his wife other than the two statements that were email through by the representative during the hearing. The Tribunal has considered the two statements later in this decision. However, given the time which has elapsed since the statutory declaration was made to the Department and that no further physical submissions were submitted to the Tribunal prior to the hearing by the review applicant the Tribunal places limited weight on the statutory declaration.

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.M. EdgooseMemberATTACHMENT – 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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