Lual (Migration) - [2021] AATA 4531

Lual (Migration) [2021] AATA 4531 (8 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Nyawal Dak Lual
VISA APPLICANTS:  Miss Nyadet Banak Dak Lual
Miss Nyachip Banak Lual
Miss Nyamal Banak Lual
CASE NUMBER:  1832848
HOME AFFAIRS REFERENCE(S):          2016046790 OSF2016046790
MEMBER:M. Edgoose
DATE:8 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 08 November 2021 at 11:23am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of parents – DNA testing report – visa applicants not adopted – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14
CASES
EC v MIMIA [2004] FCA 978
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 18 October 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 22 April 2016. 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.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant’s parents were either dead, permanently incapacitated or of unknown whereabouts.
The review applicant appeared before the Tribunal on 3 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nuer and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the visa applicant an orphan relative 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 visa applicant who is 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 Lual (Migration)

Details

AGLC: Lual (Migration) [2021] AATA 4531
Case: [2021] AATA 4531
Decision Date: 8 November 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), by the visa applicants. The claimed Australian relative was Ms Nyawal Dak Lual. The core of the dispute revolved around whether the visa applicants were indeed an orphan relative of Ms Lual, as required by the Migration Regulations 1994. The decision was made by M. Edgoose of the Tribunal.

The Tribunal was required to determine whether the visa applicants met the criteria for an orphan relative of an Australian relative at the time of application and at the time of the decision. Specifically, the Tribunal had to consider whether the visa applicants were a "relative" of Ms Lual, an "Australian relative" as defined, and whether they met the definition of an "orphan relative" under regulation 1.14 of the Regulations. The Tribunal also had to consider the impact of adoption, although this was not the primary issue.

The Tribunal's reasoning focused on the definition of "relative" and the evidence presented to establish the claimed relationship. DNA testing was undertaken, and the report indicated it was unlikely that the visa applicants and Ms Lual were related as aunt and niece. Despite Ms Lual's assertion that she believed the visa applicants were her brother's children and still considered them related, the delegate was not satisfied that the visa applicants met the requirements of regulation 1.14(a)(iii) due to the DNA findings. The Tribunal affirmed the delegate's decision, finding that the visa applicants were not an orphan relative of an Australian relative.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas, 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 EVIDENCEIs the visa applicant an orphan relative 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 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): reg 1.03. In the present case, Ms Nyawal Dak Lual, is the relevant claimed Australian relative. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative 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.Relative – reg 1.14(a)(iii) 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa. According to the delegate’s decisions for each of the visa applicants, the delegate was not satisfied the claimed relative, the review applicant, was related. To confirm this DNA testing was undertaken and on 16 August 2018 the Department received the DNA testing report from Genomic Diagnostics. The report indicated that it is unlikely that the visa applicants and the review applicant are related as aunt and niece as claimed. This was the consistent finding by the delegate for each of the visa applicants. On 17 August 2018 the Department invited the review applicant to make comment on the DNA findings. The review applicant responded to the Department through her representative that she always believed the visa applicant and her siblings were the children of her brother. Despite the DNA results the review applicant stated that she still considers the visa applicant to be related. The delegate considered all of the information and evidence provided however was not satisfied that the visa applicants were a relative of the review applicant and therefore was not satisfied the visa applicants met the requirements of reg 1.14(a)(iii).

Decision

Reasons for decision

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