Juge (Migration)

[2019] AATA 4442

Juge (Migration) [2019] AATA 4442 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kadija Burka Juge

VISA APPLICANTS:  Miss Shamsi Kedir Buta
Mr Gemeda Kedir Buta
Miss Rabiya Kedir Buta

CASE NUMBER:  1901776

DIBP REFERENCE(S):  2016046710

MEMBER:Nicholas McGowan

DATE:3 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 117 visa:

·Regulation 1.14(b) for the purposes of cl.117.211 of Schedule 2 to the Regulations

Statement made 03 October 2019 at 6:37am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – death certificates for  parents verified as genuine – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.14(b), Schedule 2, cl 117.211

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 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 10 March 2016. The delegate refused to grant the visas on 19 November 2018.

2. The delegate made the decision on the basis that he was not satisfied by the evidence that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts, as required to satisfy regulation 1.14(b) for the purposes of criterion 117.211 which is a necessary prerequisite for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 22 August 2019 this Tribunal received an email from the Visa Integrity Unit of the Department of Home Affairs (Australian High Commission in Nairobi, Kenya). This email, contained at folio 105 of this Tribunal’s file number 1901776 outlined for this Tribunal the verification through which a court order and two death certificates were found genuine by the International Organisation for Migration. Relevantly, the two death certificates belonged to the parents of the applicant (including the secondary applicants). The court Order pertains to the custody of the applicants. In light of the new evidence received, this Tribunal is satisfied that the criterion is met, and death certificates provided by the applicants which support their claim their parents are deceased have been verified as genuine by an independent authority. For these reasons this Tribunal has concluded these visa applications should be remitted for reconsideration.

   DECISION

4. This Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 117 visa:

   ·     Regulation 1.14(b) for the purposes of clause 117.211 of Schedule 2 to the Regulations

   Nicholas McGowan
   Member