Malag (Migration) - [2023] AATA 2252

Malag (Migration) [2023] AATA 2252 (28 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Sarah John Malag
VISA APPLICANTS:  Ms Alier Shan Elias Lual
Ms Asia Shan Elias Lual
Ms Achok Shan Elias Lual
REPRESENTATIVE:  Mr Eugene Goodluck Perazim (MARN: 0742014)
CASE NUMBER:  1906510
HOME AFFAIRS REFERENCE(S):          OSF2016046824 OSF2016046825 OSF2016046826
MEMBER:Brendan Darcy
DATE:28 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that each of the visa applicants meets the following criteria for a Subclass 117 (Orphan Relative) visa:
· cl 117.211 of Schedule 2 to the Regulations; and
· cl 117.221 of Schedule 2 to the Regulations.

Statement made on 28 April 2023 at 11:34am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ of an Australian relative – no parental care – contemporaneous death certificate of the mother – mutually unsupportive evidence regarding the father – bogus ‘death certificate’ – reasonable and compelling reasons for the lack of evidentiary material – inadequate level of migration advice and assistance – credible witness – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cls 117.211, 117.221
CASES
Nguyen v MIMA (1998) 158 ALR 639
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 22 January 2019 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 16 May 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.
For the purposes of this decision, the review applicant is to be referred to as the sponsor; the first named visa applicant is to be referred to as the first applicant; the second named visa applicant as the second applicant; and the third named applicant as the third applicant.
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 of Schedule 2 to the Regulations because the definition of Orphan Relative under r 1.14 was not met on the basis it was not accepted that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts
The review applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the first visa applicant…

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 Malag (Migration)

Details

AGLC: Malag (Migration) [2023] AATA 2252
Case: [2023] AATA 2252
Decision Date: 28 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), lodged on behalf of three minor applicants. The sponsor, an Australian citizen, claimed to be the maternal aunt of the applicants and that their parents were deceased. The visa application was lodged at Australia's diplomatic mission in Nairobi, Kenya, with the applicants residing in Uganda at the time.

The primary legal issue before the Tribunal was whether the visa applicants met the definition of an "orphan relative" under the Migration Regulations 1994. This required determining if each of the applicants' parents was either dead, permanently incapacitated, or of unknown whereabouts, and if there were no compelling reasons against granting the visa in the best interests of the applicants. The Tribunal also considered whether there were reasonable and compelling reasons for any lack of evidentiary material and the adequacy of migration advice provided.

The Tribunal found that while a death certificate for the applicants' mother was provided, the evidence regarding the father was mutually unsupportive and included a potentially bogus death certificate. The sponsor's evidence indicated uncertainty about the father's whereabouts, with reports of him being alive and heavily intoxicated, and later, unconfirmed reports of his death. The Tribunal noted the sponsor's limited English proficiency and her inability to obtain further documentation. Given the deficiencies in the evidence concerning the father and the potential inadequacy of migration advice, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that each of the visa applicants meets the criteria specified in cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The sponsor was born in the Republic of Sudan (Sudan) on 1 January 1976. The sponsor migrated to Australia on 13 March 2003 while holding a humanitarian visa. Australian citizenship was conferred on the sponsor on 29 March 2006. The sponsor’s personal circumstances included sponsoring her mother (the witness) to Australia; not being in a spousal relationship; and having six children of her own at the time of application. A combined application for Class AH Subclass 117 (Orphan Relative) visa was lodged on 16 May 2016. It was lodged on behalf of the visa applicants by the sponsor at Australia’s diplomatic mission at Nairobi in Kenya. The first applicant was born on 6 September 2004 and the second applicant 16 September 2006. They were both in South Sudan; and the third applicant was born on 10 March 2011 in Egypt. It is claimed the applicants are ethnically Dinka and that they are citizens of the Republic of South Sudan (South Sudan). South Sudan seceded from Sudan in July 2011 when it was internationally recognised as a sovereign and independent nation. The sponsor claimed that her half-sister is the mother of the visa applicant and to be the maternal aunt of the visa applicants. At the time of application, the first and second applicants were aged 12 and 10 at the time of the visa being lodged. The third applicant was aged 5. It is claimed the visa applicants were residing in Kampala in Uganda, at the time of application. According to the application forms and statutory declaration, the visa applicants’ mother and father were deceased. The following information was also provided by the sponsor to corroborate the claim of deceased parents:· Extract of death certificate for Akolda Kuat Majok issued on 16 June 2011 by Health Office in Cairo, Egypt;[1]· A photograph claiming to be Akolda's coffin in hearse with mourning members around the deceased. The child with the pink is first visa applicant, while the partly obscured child is the second applicant (the third applicant was a small baby at the time of the funeral); and· A death certificate for Shan Lual issued on 10 October 2012 by Nyala Hospital, Darfur.[2] [1] Folio 36 in OSF2016046824[2] Folio 35 in OSF2016046824 A statutory declaration (dated 12 September 2018) signed by the sponsor stated, in summary that;· The sister of the sponsor (the visa applicant’s mother) was sick with cancer for a long time. The sponsor’s mother travelled to Cairo with her sister but she could not stay very long;· The sponsor’s mother told the sponsor that during the time she was there, Akolda's husband was not there; he would come by, see them all, and go again;· The sponsor’s sister died on 20 June 2011;· In 2013, the sponsor and her mother decided to move the children to Uganda;· The sponsor’s mother returned to Australia in 2015; while the visa applicants lived in Kampala, Uganda with a woman; · The sponsor is not sure about what happened to the visa applicants’ father;· The sponsor thinks the father returned to South Sudan. She asked people for news about him and the sponsor heard reports that he was still the same, getting drunk all the time. Someone told the sponsor that they thought he was dead but the sponsor does not know what is true; · After the sponsor heard that the visa applicant’s father was dead, the sponsor stopped asking people about his whereabouts; · The sponsor’s English is not very good, and she did not why the application said that her sister’s husband died in Darfur; and · Her sister’s husband cannot be found, and he is not taking care of his children. It has been at least six years since the sponsor heard anything about him. She did not have a death certificate for him, or any way of getting a death certificate.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that each of the visa applicants meets the following criteria for a Subclass 117 (Orphan Relative) visa:·cl 117.211 of Schedule 2 to the Regulations; and·cl 117.221 of Schedule 2 to the Regulations.Brendan DarcyMemberATTACHMENT – 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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