Koiboi (Migration) - [2018] AATA 4016

Koiboi (Migration) [2018] AATA 4016 (24 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Tarnue Koiboi
VISA APPLICANTS:  Mr Richard Koiboi
Miss Evon Koiboi
CASE NUMBER:  1612762
HOME AFFAIRS REFERENCE(S):           OSF2014/052509
MEMBER:Kira Raif
DATE:24 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 24 August 2018 at 7:53am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – children of the sponsor – DNA tests – not biological or adopted children – dependent on the sponsor – financial support and upbringing – decision under review affirmed
LEGISLATION
Family Law Act 1975 (Cth), s 60HA, 69Q
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2 cls 101.211, 101.221

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 and Border Protection on 14 July 2016 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 are nationals of Libya born in 2006 and 2007 respectively. They applied for the visas on 21 November 2014. The delegate refused to grant the visas on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicants were children of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 16 August 2018 to give evidence and present arguments. 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.
Relevant law
At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).
At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for…

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: Koiboi (Migration) [2018] AATA 4016
Case: [2018] AATA 4016
Decision Date: 24 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for Child (Migrant) (Class AH) visas, specifically Subclass 101 (Child) visas, by the applicants. The sponsor of the visa applicants was the subject of the review.

The primary legal issue before the Tribunal was whether the applicants met the criteria for the grant of a Subclass 101 visa. This involved determining if the applicants were the biological or adopted children of the sponsor, or if they were otherwise dependent on the sponsor, receiving financial support and being brought up by them.

The Tribunal's reasoning focused on the evidence presented, including DNA tests, which indicated that the applicants were not the biological or adopted children of the sponsor. Despite this, the Tribunal considered the dependency criteria. However, based on the evidence, the Tribunal concluded that the applicants did not satisfy the requirements for the visa. No claims were advanced in relation to other visa subclasses within Class AH.

Consequently, the Tribunal affirmed the decisions not to grant the Child (Migrant) (Class AH) visas to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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