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

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).
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.
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.
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.
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…

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 Mahat (Migration)

Details

AGLC: Mahat (Migration) [2022] AATA 2685
Case: [2022] AATA 2685
Decision Date: 2 June 2022

CaseChat Overview and Summary

This matter concerned a review of a decision not to grant Subclass 117 (Orphan Relative) visas to certain visa applicants. The review applicant, who identified as the half-brother of the visa applicants, sought to establish himself as the relevant Australian relative. The Administrative Appeals Tribunal was tasked with determining whether the visa applicants met the criteria for an orphan relative visa.

The primary legal issue before the Tribunal was whether the visa applicants were "orphan relatives" of an "Australian relative" as defined by the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the review applicant was a "relative" of the visa applicants and whether the visa applicants met the other requirements of being an orphan. The Tribunal also considered whether the visa applicants continued to meet these criteria at the time of the decision.

The Tribunal found that the review applicant had failed to provide sufficient evidence to establish that he was a relative of the visa applicants. While the review applicant claimed to be the half-brother, he presented no documentary evidence, relying solely on oral testimony. The Tribunal gave limited weight to this oral evidence, noting that the review applicant had not declared other siblings upon his arrival in Australia and had had ample time to obtain supporting documentation or arrange for DNA testing. Consequently, the Tribunal was not satisfied that the visa applicants were relatives of an Australian citizen, permanent resident, or eligible New Zealand citizen, and therefore the criteria for the Subclass 117 visa were not met.

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

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, half-brother, is the 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. 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. 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.

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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