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

.

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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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).

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

7. The review applicant provided a copy of the delegate’s Decision record to the Tribunal for the purpose of this review.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

10. 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.

11. 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).

12. ‘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.

13. 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)

14. 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)

15. 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)

16. 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.

17. 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)

18. 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.

19. The review applicant was invited to comment on the whereabouts of her parents and why she is claiming her brother to be an orphan. The applicant told the Tribunal that she left Somalia, the family’s country of birth, in 2007 with her brother and that at that time she did not know the whereabouts of her parents or siblings. She indicated that she had five brothers and sisters and that they were separated during the civil war. Since that period she has had no contact with her missing mother or siblings, with her father dying before this time when she was around six years of age. The review applicant told the Tribunal that she and her brother (applicant) travelled to the Afgoye refuge camp, where they stayed for a period of two years. They moved to Nairobi together in 2009 and the review applicant married in 2010, coming to Australia on a partner visa in 2011.

20. The review applicant was invited to comment on the information provided to the Department in her partner visa application where it is claimed that she mentioned the existence of her mother. The applicant told the Tribunal that this was not what she had said, that a neighbour had provided the interpretation, and that the translation was incorrect. She told the Tribunal that she was around six or seven years of age when her father died.

21. The applicant provided evidence to indicate that she had sought to locate her mother through Red Cross and that there was insufficient information for them to pursue the inquiry. The applicant provided evidence to the Tribunal that indicates that she has supported her brother financially and continues to do so. The visa applicant does not hold working rights in Kenya as he does not hold citizenship there due to his refugee status.

22. There is no information before the Tribunal to indicate that the applicant’s mother is alive or that Ms Hussein has not assumed the parental role for her brother since they fled Somalia in 2007.

23. It follows that , r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

24. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. In the evidence before the Tribunal, the review applicant and visa applicant are the only family members that have kept in contact since they were separated by civil war and the review applicant continues to financially support the visa applicant. In recent evidence to the Tribunal, it is claimed that they remain close with the review applicant visiting her brother. In its consideration of the composition of the family, and the visa applicant being the only remaining sibling of the review applicant, there is no evidence before the Tribunal to indicate that there is no compelling reason to believe that the grant of the visa is not in the best interests of the visa applicant.

25. It follows that r.1.14(c) was met at the time of application and continues to be met at the time of decision.

26. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

27. 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; and

    Helen Kroger
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan relative

    An 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.