Ismail (Migration) - [2024] AATA 699

Ismail (Migration) [2024] AATA 699 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Noureddin Ismail
VISA APPLICANTS:  Miss Sundusa Ismail
Mr Abdi Woltai
REPRESENTATIVE:  Ms Kathleen Coffey
CASE NUMBER:  2114102
HOME AFFAIRS REFERENCE(S):          2017023578
MEMBER:Jason Pennell
DATE:30 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first named visa applicant meets 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.

Statement made on 30 January 2024 at 10.05am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – younger sibling – guardianship order – age at time of application and decision – original birth certificate, dated a month before application made, show applicant 16 at time of application – non-registration at time of birth common in rural areas – age at time of guardianship oreder consistent – now over 18 – best interests – dangerous and volatile conditions and vulnerability of young, single female orphan – second applicant nephew not able to be contacted and application withdrawn – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.14, Schedule 2, cls 117.211(a), 117.221

CASES

EC v MIMIA [2004] FCA 978

Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 9 September 2021 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 18 October 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 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet the requirements as prescribed in cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was under 18 years of age at the time of the application.[1]
[1] Decision record, Application ID 40629149901 dated 9 September 2021 at p.5; AAT file No 2114102 ID Doc: 11770706
On 14 December 2022 the review applicant filed with the Tribunal a Withdrawal of Application for Migration or Review Form withdrawing his…

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.

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Details

AGLC: Ismail (Migration) [2024] AATA 699
Case: [2024] AATA 699
Decision Date: 30 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of a younger sibling for a Child (Migrant) (Class AH) visa, subclass 117 (Orphan Relative). The applicant sought review of a decision to refuse the visa. The primary applicant was the younger sibling of a deceased parent, and the second applicant, a nephew, had his application withdrawn. The core of the dispute concerned the applicant's age at the time of the visa application and the subsequent decision, and whether the best interests of the child were adequately considered.

The Tribunal was required to determine whether the applicant met the eligibility criteria for the Orphan Relative visa, specifically concerning their age at the relevant times. It also had to consider whether the best interests of the applicant, a young, single female orphan facing dangerous and volatile conditions, were properly taken into account in the original decision-making process. The applicant's age was evidenced by an original birth certificate, dated shortly before the application was made, which indicated the applicant was 16 at that time.

In its reasoning, the Tribunal acknowledged that the non-registration of births at the time of birth is common in rural areas, and found the applicant's age at the time of a guardianship order to be consistent with the birth certificate. Despite the applicant now being over 18, the Tribunal considered the vulnerability of a young, single female orphan in dangerous conditions as a significant factor in assessing best interests. Given these considerations and the circumstances, the Tribunal decided to remit the decision for reconsideration.

Orders