Hassen (Migration) - [2022] AATA 4620

Hassen (Migration) [2022] AATA 4620 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Shemshedin Mohammed Hassen
VISA APPLICANTS:  Master Saladin Abdurahman Mohammed
Mr Roba Abdurahman Mohammed
Miss Asina Abdurahman Mohammed
REPRESENTATIVE:  Ms Alexandra Stratigos
CASE NUMBER:  2111854
HOME AFFAIRS REFERENCE(S):          OSF2017/024050 OSF2017024050 OSF2017024051
MEMBER:Kira Raif
DATE:9 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant and the third named visa applicant meet the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations; and
·cl 117.221 of Schedule 2 to the Regulations.

The Tribunal affirms the decision not to grant the second named visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 09 November 2022 at 11:18am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Federal Circuit and Family Court – ‘orphan relative’ of an Australian relative – niece and nephew – DNA testing – parental responsibility – no parental care – limited documentary and contemporaneous evidence – cultural and security issues in Ethiopia – hospital record – statements from attendees of funeral – appointment of ‘tutor and administrator’ by local court in Ethiopia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cl 117.211
CASES
Nakad v MIAC [2013] FMCA 234
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 27 November 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 are nationals of Ethiopia. They applied for the visas on 16 January 2017. The delegate refused to grant the visas because the visa applicants did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied they were orphan relatives of the Australian relative. The sponsor (the review applicant) sought review of the delegate’s decision. In March 2021 the Tribunal (differently constituted) affirmed the decision under review. The review applicant sought judicial review of the Tribunal’s decision and in September 2021 the Court remitted the matter to the Tribunal for reconsideration.
The review applicant appeared before the Tribunal on 5 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse Ms Aden. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo 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 in relation to the two visa applicants and affirmed in relation to the remaining visa applicant.
Relevant law
At 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 Hassen (Migration)

Details

AGLC: Hassen (Migration) [2022] AATA 4620
Case: [2022] AATA 4620
Decision Date: 9 November 2022

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an appeal concerning applications for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative). The applicants, identified as niece and nephew, sought to migrate to Australia sponsored by an Australian relative, Mr. Shemshedi Mohammed Hassen, who is their claimed uncle. The core dispute revolved around whether the visa applicants met the definition of "orphan relative" and established the requisite familial relationship with the sponsor, given concerns about the authenticity and timeliness of the provided documentation.

The legal issues before the Court were whether the Administrative Appeals Tribunal (AAT) had erred in its assessment of the evidence regarding the applicants' status as orphan relatives and their relationship to the sponsor. Specifically, the Court needed to determine if the AAT had correctly applied the relevant migration regulations, particularly those defining "orphan relative" and "relative," and whether it had adequately considered the explanations provided for discrepancies in documentary evidence, such as birth certificates and the absence of death certificates. The Court also had to consider the impact of cultural practices in Ethiopia on the availability and significance of official records.

The Court found that while the AAT had correctly identified the evidentiary deficiencies, it had not fully considered the potential impact of cultural and security issues in Ethiopia on the ability to obtain contemporaneous documentary evidence. The AAT had noted the late issuance of birth certificates and the absence of official death certificates, but the sponsor had explained these issues by reference to Ethiopian cultural practices regarding birth registration and the Gregorian calendar. The Court also noted that a guardianship order had been issued by a local Ethiopian court, albeit based on witness testimony. Consequently, the Court determined that the AAT's decision to affirm the refusal for two of the applicants was not adequately reasoned, particularly in light of the limited documentary evidence and the explanations offered.

The Court remitted the applications for the first and third named visa applicants to the Minister for reconsideration of the remaining criteria for a Subclass 117 (Orphan Relative) visa. However, the Tribunal's decision to affirm the refusal for the second named visa applicant was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

‘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. Evidence before the Tribunal The review applicant provided to the Tribunal a copy of the primary decision records in relation to each of the visa applicants. These indicate that the visa applicants were sponsored by Mr Shemshedi Mohammed Hassen, who is claimed to be the visa applicants’ uncle. When making the application, the visa applicants stated that their father Abdurahman Mohammed and their mother Miski Usmael Ibro were deceased. The delegate was satisfied that the visa applicants were under the age of 18, as claimed. With respect to the relationship between the visa applicants and the sponsor, the delegate noted that the sponsor declared Abdurahman Mohammed as his sibling in his own visa application. The delegate notes that the visa applicants’ birth certificates declares their parents as Abdurahman Mohammed and Miski Usmael Ibro but the birth certificates were issued shortly before the visa applications were made. The delegate notes that the visa applicants provided copies of their father’s and sponsor’s birth certificates and these show age difference of less than six months. In response to the delegate’s concerns about it, the sponsor to lack of reading and writing skills in English and stated that unfamiliarity with the Gregorian Calendar while living in Ethiopia contributed to the error on the birth certificates. The sponsor explained that birth records have no cultural significance for them the way they do in western culture. The delegate noted that no other evidence, such as historical documents or photographs, had been provided to demonstrate the relationship between the visa applicants and the sponsor and DNA testing was not offered due to the claimed nature of the relationship. The delegate was not satisfied the visa applicants were nephews or niece of the sponsor. With respect to the visa applicants’ status as orphans, the delegate notes that the visa applicants claimed their mother died of eclampsia during childbirth in December 2013 and the visa applicants provided a hospital record dated October 2016. The visa applicants also claimed that their father died in August 2013 and they provided a guardianship order issued by the local court, which is recorded to have been issued on the basis of witness testimony rather that official records. The delegate noted that death certificates and burial records can be easily obtained and are issued at the time of death and burial in Ethiopia but these documents had not been provided despite the delegate’s request. Thus, the delegate did not accept that the visa applicants’ parents were deceased and that they were orphan relatives of the sponsor.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the two visa applications to the Minister to consider the remaining criteria for the visa in relation to two of the visa applicants. The Tribunal has decided to affirm the decision in relation to Roba. decision The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant and the third named visa applicant meet the following criteria for a Subclass 117 (Orphan Relative) visa:·cl 117.211 of Schedule 2 to the Regulations; and·cl 117.221 of Schedule 2 to the Regulations. The Tribunal affirms the decision not to grant the second named visa applicant a Child (Migrant) (Class AH) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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