Hassen (Migration) - [2021] AATA 971

Hassen (Migration) [2021] AATA 971 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Shemshedin Mohammed Hassen
VISA APPLICANTS:  Master Saladin Abdurahman Mohammed
Miss Asina Abdurahman Mohammed
Mr Roba Abdurahman Mohammed
CASE NUMBER:  1901676
DIBP REFERENCE(S):  OSF2017024050
MEMBER:M. Edgoose
DATE:2 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 02 March 2021 at 2:41pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Federal Court remittal – orphan relatives of the sponsor – guardianship order based on witness testimony – no death certificate or burial records provided – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14
CASES
EC v MIMIA [2004] FCA 978
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 27 November 2018 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 16 January 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 (the Regulations). Relevantly to this case, they include cl.117.211 and cl.117.221.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 2 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Meluka Aden the wife of the review applicant., Roba one of the visa applicant’s, Zakriya Abrhime, a neighbour and a court witness, Adnan Abduraman a neighbour and a court witness, Nasr Mustufa a neighbour and wife of Adnan, Abdala Ahamad Abdula a neighbour and a court witness and Amatula Abduraman a neighbour and had provided some care for the visa applicant’s. 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 by his registered migration agent.
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 applicant has been adopted by an Australian relative (cl.117.211(b)). The visa applicant must continue to satisfy that criterion 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) [2021] AATA 971
Case: [2021] AATA 971
Decision Date: 2 March 2021

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal of Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), for the visa applicant. The review applicant, an Australian relative, sought to sponsor the visa applicant. The core dispute revolved around whether the visa applicant qualified as an "orphan relative" under the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant met the criteria for being an orphan relative of an Australian relative at the time of application and at the time of the decision. This involved assessing whether the visa applicant's parents were deceased, permanently incapacitated, or of unknown whereabouts, and whether the visa applicant was a relative of the Australian sponsor.

The Tribunal affirmed the decision to refuse the visas, finding that the visa applicant did not meet the definition of an orphan relative. While the Tribunal accepted that the visa applicant's mother had died, it was not satisfied that the visa applicant's father was deceased. This was due to a lack of official documentation, such as a death certificate and burial records, despite requests for such evidence. The Tribunal gave little weight to a guardianship order issued by an Ethiopian court, as it was based on witness testimony rather than official records, and the review applicant had failed to provide the requested supporting documents. The Tribunal concluded that the lack of satisfactory evidence regarding the father's death meant the primary criteria for the Subclass 117 visa were not met.

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 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, Mr Shemshedin Mohammed Hassen, is 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. The review applicant claimed at hearing that his brother, the visa applicant’s father, is dead. According to information on the Tribunal file the visa applicant’s father apparently died on 5 August 2013. As mentioned in the delegates decision the Diredawa Administration First Instance Court issued a guardianship order on 10 December 2016 “based on witness testimony rather than official government records”, that being a death certificate and burial records. The delegate further noted in their decision that “death certificates and burial records are easily obtained and are issued at time of death and burial in Ethopia”. The Tribunal notes that on 2 May 2018 the Department wrote to the review applicant requesting that he provide a copy of the relevant documents. A response was received on 12 June 2018 however the documents that were requested were not submitted. The review applicant stated in his response that “the Oromos have been in unrest since 2014”. At hearing, on 2 March 2021, the Tribunal asked the review applicant if he had obtained a copy of his brother’s death certificate and burial records. The review applicant responded that he did not have any records or certificates regarding the apparent death of his brother. The review applicant informed the Tribunal at hearing that he had provided all of the evidence he has for this matter. The review applicant considered the information that he had provided including the Diredawa Administration First Instance Court issued guardianship order was sufficient evidence for this matter. The Tribunal informed the review applicant at hearing that the Tribunal accepts that the visa applicant’s mother passed away in hospital on 21 December 2013 due to child birth complications. However, given the lack of supporting evidence in the name of a death certificate and burial records of the visa applicant’s father the Tribunal is not satisfied the visa applicants are orphaned. For these reasons the Tribunal gives little weight to the oral evidence provided at hearing by the review applicant and the court order made by the Diredawa Administration First Instance Court.

Decision

Reasons for decision

For these reasons, the criteria for the grant of a Subclass 117 visa are not met. In relation to the primary criteria for the grant of a Subclass 101 Child (Migrant) visa the Tribunal finds that the visa applicant’s do not meet the requirements as they have not claimed to be the child, step-child or adopted child of the review applicant. In relation to a Subclass 102 Adoption (migrant) visa the Tribunal finds that the visa applicant’s do not meet the requirements as they have not claimed to have been adopted by your sponsor. 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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