Ladu (Migration) - [2021] AATA 5104

Ladu (Migration) [2021] AATA 5104 (14 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Michael Yata Ladu
VISA APPLICANTS:  Mr Yona Mori
Miss Lona Sebila
Mr Benjamin Laku
CASE NUMBER:  1900130
HOME AFFAIRS REFERENCE(S):          2017023609 OSF2017/023609
MEMBER:Christine Kannis
DATE:14 December 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 14 December 2021 at 4:21pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – parents dead, permanently incapacitated or of unknown whereabouts – relationship between review applicant and visa applicants’ mother – inconsistent family composition given in different applications and interviews – no DNA test results or post-hearing submissions provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.14(a)(iii), Schedule 2, cl 117.211(a), 117.221
CASE
EC v MIMIA [2004] FCA 978
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 14 November 2018 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 (the Regulations). Relevantly to this case, they include cl 117.211 and cl 117.221.
The visas were refused because the delegate was not satisfied that the visa applicants could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts and, therefore, they did not meet cl 117.211.
The review applicant appeared before the Tribunal on 26 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Bishop Charles Alfred William Lasu, Mr Emmanuel Lomoro Samuel and Mr Khemis David Morris by telephone from Kenya. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether each of the visa applicants is an orphan relative of an Australian relative as defined in reg 1.14.
Are the visa applicants orphan relatives of an Australian relative?
Clause 117.211 requires that at the time of application, the visa applicant is an orphan relative of an Australian relative (cl 117.211(a)) or is not an orphan relative only because the applicant has been adopted by an…

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 Ladu (Migration)

Details

AGLC: Ladu (Migration) [2021] AATA 5104
Case: [2021] AATA 5104
Decision Date: 14 December 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ladu (Migration), where the review applicant, Mr Michael Yata Ladu, sought the grant of Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), for three visa applicants. The dispute centred on whether the visa applicants met the criteria for being considered "orphan relatives" of an Australian relative, as defined by the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if each visa applicant satisfied the requirements of clause 117.211 of the Migration Regulations, which mandates that the applicant be an orphan relative of an Australian relative at the time of application and continue to meet that criterion at the time of decision, or not do so only because they have turned 18. This involved assessing whether the visa applicants met the definition of an "orphan relative" under regulation 1.14, specifically concerning their age, relationship to the Australian relative, and the circumstances of their parents.

The Tribunal's reasoning focused on the cumulative nature of the requirements in regulation 1.14. While the Tribunal was satisfied, based on the provided passports, nationality certificates, and the review applicant's explanation regarding his grandmother's diary, that the visa applicants had not turned 18 at the time of application or decision, it found that the crucial criterion of being an "orphan relative" was not met. This was due to inconsistencies in the family composition provided in different applications and interviews, which led the Tribunal to conclude that it could not be satisfied that the visa applicants were unable to be cared for by either parent because each of them was dead, permanently incapacitated, or of unknown whereabouts. The absence of DNA test results or post-hearing submissions further contributed to this lack of satisfaction.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants the Child (Migrant) (Class AH) visas, Subclass 117, as the criteria for the visa were not met.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether each of the visa applicants is an orphan relative of an Australian relative as defined in reg 1.14.Are the visa applicants orphan relatives of an Australian relative? Clause 117.211 requires that at the time of application, the visa applicant is an orphan relative of an Australian relative (cl 117.211(a)) or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl 117.211(b)). The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl 117.221. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: cl 837.111. 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): reg 1.03. In the present case, the visa applicants’ sponsor for the visa application is the review applicant, Mr Michael Yata Ladu, and he is the relevant Australian relative. The requirements in reg 1.14 are cumulative meaning if one fails all fail. For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are not orphan relatives of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is not met and does not continue to be met at the time of decision.Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The Tribunal has considered the passports issued by the Republic of South Sudan and nationality certificates. Noting that there were no birth certificates provided, the Tribunal asked the review applicant how the ages of the children were assessed. In response he said that the grandmother who cared for them knew when they were born because she wrote the information in her diary. The Tribunal has no evidence that the visa applicants’ dates of birth are otherwise than as stated. Based on the written and oral evidence, the Tribunal is satisfied that Yona Mori was born on 20 July 2005, that Lona Sebila was born on 2 July 2007 and that Benjamin Laku was born on 7 January 2014. Therefore, the Tribunal finds that:· at the time of application, the first named visa applicant, Yona Mori, was 12 years of age, the second named visa applicant, Lona Sebila, was 10 years of age and the third named visa applicant, Benjamin Laku, was three years of age; and· at the time of decision, the first named visa applicant, Yona Mori, is 16 years of age, the second named visa applicant, Lona Sebila, is 14 years of age and the third named visa applicant, Benjamin Laku, is seven years of age.

Decision

Reasons for decision

For these reasons, the criteria for the grant of a Subclass 117 visa are not met by the visa applicants. There have been no claims advanced in respect of the other visa subclasses in Class AH by the visa applicants.DECISION The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Christine KannisMemberATTACHMENT – 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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