Madhek (Migration) - [2021] AATA 4535

Madhek (Migration) [2021] AATA 4535 (10 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Cholok Ramdan Madhek
VISA APPLICANTS:  Master Pabek Dungu
Master Khairalseed Dungu
Ms Nyibol Dungu
CASE NUMBER:  1834511
HOME AFFAIRS REFERENCE(S):          2017022794 OSF2017022794
MEMBER:M. Edgoose
DATE:10 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 10 November 2021 at 11:10am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – claimed half-sister of the visa applicants’ mother – such relationship not claimed in previous applications – 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 5 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 25 May 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.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were relatives of the review applicant as claimed.
The review applicant appeared before the Tribunal on 10 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.
The review applicant was represented in relation to the review by her representative.
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…

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 Madhek (Migration)

Details

AGLC: Madhek (Migration) [2021] AATA 4535
Case: [2021] AATA 4535
Decision Date: 10 November 2021

CaseChat Overview and Summary

This matter concerned an appeal by the visa applicants, Master Pabek Dungu and Master Khairalseed Dungu, against decisions not to grant them Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative). The core of the dispute revolved around whether the visa applicants were "orphan relatives" of an Australian relative, as required by the Migration Regulations 1994. The decision was made by a member of the Tribunal.

The Tribunal was required to determine whether the visa applicants met the criteria for an orphan relative visa, specifically whether they were a relative of an Australian relative and whether they qualified as an "orphan relative" under the relevant regulations. This involved assessing the claimed relationship between the visa applicants and Ms. Cholok Ramdan Madhek, who was identified as the Australian relative. A key issue was whether Ms. Madhek was the half-sister of the visa applicants' mother, Napisa Madhek.

The Tribunal affirmed the delegate's decisions, finding that the visa applicants had not established the required familial relationship. The delegate had been unconvinced that Ms. Madhek was the half-sister of Napisa Madhek, and therefore, the visa applicants were not considered relatives of Ms. Madhek. Furthermore, in relation to the second visa applicant, the Tribunal noted that Ms. Madhek had not declared Napisa Madhek as a sibling when she herself was granted a visa, casting doubt on the claimed half-sibling relationship. Consequently, the Tribunal concluded that the criteria for the Subclass 117 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 Cholok Ramdan Madhek, is the claimed relevant 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 delegates decision of the first named visa applicant Master Pabek Dungu, the delegate was not satisfied that his mother, Napisa Madhek and the review applicant, Ms Cholok Ramdan Madhek are half siblings as claimed. For this reason, the delegate was not satisfied the first named visa applicant is a relative of the review applicant as claimed. At hearing the review applicant disputed this claim that she is not a relative of Master Pabek Dungu because she claimed to be the half-sister of the visa applicant’s mother. According to the delegates decision of the second named visa applicant, Master Khairalseed Dungu, the delegate was not satisfied that his mother and the review applicant, Ms Cholok Ramdan Madhek are half siblings as claimed. The delegate also found that when the review applicant was granted her visa, she only declared five brothers and six sisters. The claimed mother of the visa applicant’s, Napisa Madhek, was not declared on that file. For this reason, the delegate was not satisfied the second named visa applicant is a relative of the review applicant as claimed. At hearing the review applicant disputed this that she is not a relative of Master Khairalseed Dungu because she claimed to be the half-sister of the visa applicant’s mother.

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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