Hussein (Migration) - [2022] AATA 1790

Hussein (Migration) [2022] AATA 1790 (7 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Nimo Hassan Hussein
VISA APPLICANT:  Mr Abdalla Hassan Hussein
CASE NUMBER:  1717442
DIBP REFERENCE(S):  2015075268 OSF2015075268
MEMBER:Helen Kroger
DATE:7 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl.117.211(a) of Schedule 2 to the Regulations

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Statement made on 07 June 2022 at 4:23pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – applicant cannot be cared for by either parent – father dead and mother’s whereabouts unknown – family separated during civil war and applicant only known remaining sibling of sponsor – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 366(1)
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211
CASE
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 28 June 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 22 June 2015. 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 which requires that the visa applicant is an orphan relative of the Australian relative at the time of application.
The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant met the definitive requirements of orphan relative in r.1.14 at the time of the application.
The review applicant appeared before the Tribunal on 15 March 2021, to give evidence and present arguments. The Tribunal conducted the hearing via telephone because of the SARS-CoV-2 pandemic. The Migration Act 1958 gives the Tribunal the authority to conduct matters in this way: Section 366(1).
The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
The review applicant provided a copy of the delegate’s Decision record to the Tribunal for the purpose of this review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant meets the definitive requirement of orphan relative as set out in r.1.14 at the time of application.
Is the visa applicant an orphan relative of…

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 Hussein (Migration)

Details

AGLC: Hussein (Migration) [2022] AATA 1790
Case: [2022] AATA 1790
Decision Date: 7 June 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), brought before the Tribunal by Ms Nimo Hassan Hussein on behalf of the visa applicant, her brother. The core dispute revolved around whether the visa applicant met the definition of an "orphan relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant satisfied the criteria for being an orphan relative, specifically whether he was under 18 years of age, lacked a spouse or de facto partner, was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also needed to consider if granting the visa would be in the best interests of the applicant.

The Tribunal found that the visa applicant met the criteria of being under 18 years of age at the time of application and continued to meet this criterion. It was also not disputed that he did not have a spouse or de facto partner. DNA evidence supported the claim that the applicant was a relative of the sponsor, Ms Hussein, who was an Australian permanent resident. The Tribunal concluded that the applicant could not be cared for by either parent, as his father was deceased and his mother's whereabouts were unknown, a situation arising from family separation during civil war.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the visa applicant met the criteria for being an orphan relative under clause 117.211(a) of Schedule 2 to the Regulations.

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 EVIDENCE The issue in the present case is whether the visa applicant meets the definitive requirement of orphan relative as set out in r.1.14 at the time of application.Is the visa applicant an orphan relative of an Australian relative? Under the Migration Act, each applicant must be an ‘orphan relative’ of the sponsor: clause117.211(a). The term ‘Orphan relative‘ is defined in Regulation 1.14. Relevantly, the applicant must not have turned 18 years of age at the time he applied for the visa: r.1.14(a)(i); each applicant must be a ‘relative’ of the sponsor: r.1.14(a)(iii); and, the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts: r.1.14(b). ‘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, the review applicant, Ms Nimo Hassan Hussein, the applicant’s sister, is the relevant Australian relative. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.Age – r.1.14(a)(i) The sponsor made the application in 2015, when the visa applicant was 14 years old. It is not in dispute that the applicant was under the age of 18 years at the time of application. Accordingly, r.1.14(a)(i) was met at the time of application.Spouse or de facto partner – r.1.14(a)(ii) Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Evidence before the Tribunal indicates that the applicant does not have a spouse or de facto partner and that continues to be the case since the Tribunal hearing. It is not in dispute that the applicant is not married nor has a de facto partner. Accordingly, r.1.14(a)(ii) was met at the time of application and continues 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. The review applicant has provided DNA analysis that supports her claim that the visa applicant is her brother. There is no evidence before the Tribunal to dispute this claim. Accordingly, the Tribunal finds that r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.No parental care – r.1.14(b)

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 application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:·cl.117.211(a) of Schedule 2 to the Regulations; andHelen KrogerMemberATTACHMENT – 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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