Mahat (Migration)

[2022] AATA 2685

Mahat (Migration) [2022] AATA 2685 (2 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdullahi Hassan Mahat

VISA APPLICANTS:  Miss Rukiya Hassan Mahat
Miss Amina Hassan Mahat
Mr Abdinasir Hassan Mahat
Mr Abdikani Hassan Mahat

REPRESENTATIVE:  Mrs Fardowsa Mohamed (MARN: 1576187)

CASE NUMBER:  1835450

HOME AFFAIRS REFERENCE(S):          2016047176 OSF2016047176

MEMBER:M. Edgoose

DATE:2 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 02 June 2022 at 8:28am

CATCHWORDS
MIGRATION– cancellation – Subclass AH (Orphan Relative) visa – Subclass 117– review applicant is the half brother of the visa applicants – no evidence before the Tribunal that the visa applicant’s have been adopted by the review applicant – Tribunal is not satisfied that the review applicant is a relative of the visa applicants – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03,1.14, Schedule 2, cls 117.111, 117.211

CASES

EC v MIMIA [2004] FCA 978

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 Home Affairs on 9 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).

2. The visa applicants applied for the visas on 23 August 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.

3. 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.

4. 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.

5. The review applicant appeared before the Tribunal on 30 May 2022 to give evidence and present arguments. Due to connection issues throughout the hearing with the review applicant’s telephone the Tribunal was not able to take oral submissions from the witnesses. The Tribunal therefore granted the review applicant and his representative to make any further submissions by close of business on 1 June 2022. The listed witnesses were Miss Rukiya Hassan Mahat the primary visa applicant, Haliimo Hussein a family friend and Abdi Hassan a family friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

6. The Tribunal notes that at time of hearing the review applicant was offshore and had been since 7 October 2020. At hearing the review applicant informed the Tribunal that hear was currently in Ethiopia and had not returned to Australia due to the Covid-19 pandemic. The Tribunal notes that at the time of the review applicant’s departure on 7 October 2020 the international boarders were closed. However, at time of this hearing the Australian boarders had been open since early 2022 and the review applicant could have returned to Australia if he chose to do so. 

7. Post hearing the Tribunal received birth certificates for each of the visa applicants that were issued on 1 June 2022, an updated agent submission and new versions of the claimed death certificates that were also issued on 1 June 2022. The Tribunal notes that no further evidence from the review applicant was submitted to support his claim that he is relative of the visa applicants. Given that the Tribunal is not satisfied that the review applicant is a relative of the visa applicants based on the limited evidence before it the Tribunal was not required to consider the other submissions. Therefore, the Tribunal has proceeded with the review based on the evidence before it and the oral evidence provided at hearing.

8. The review applicant was represented in relation to the review.

9. 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?

10. 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.

11. ‘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, half-brother, is the relevant Australian relative.

12. 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)

13. 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.

14. At hearing the review applicant claimed that he is the half brother of the visa applicants. The Tribunal ask the review applicant if he had any physical evidence to support this claim. At hearing the review applicant responded that he had no physical evidence to support his claim other than his oral evidence. The review applicant stated that he is willing to undertake DNA testing. The Tribunal refused this request at hearing given that he has had since 9 October 2018 to obtain the relevant documents and testing to prove his claimed relationship with the visa applicants. The Tribunal does not accept the oral evidence provided at hearing given that when the review applicant first arrived in Australia, he did not declare that he had other siblings. The Tribunal therefore places limited weight on the oral evidence provided at hearing.

15. As the Tribunal is not satisfied that the visa applicants are a relative of an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03 the Tribunal is therefore not required to consider the remaining regulations of reg 1.14.

16. Accordingly, reg 1.14(a)(iii) was not met at the time of application and does not continue to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

17. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

18. There is no evidence before the Tribunal that the visa applicant’s have been adopted by the review applicant.

19. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

20. Given the findings above, cl 117.211 is not met.

21. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. It follows that cl 117.221 is not met.

22. 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

23. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    M. Edgoose
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan relative

    An 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.