Mansaray (Migration) - [2023] AATA 1772

Mansaray (Migration) [2023] AATA 1772 (14 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Aminata Mansaray
VISA APPLICANT:  Mr Mohamed Mansaray
REPRESENTATIVE:  Ms Sara Khodajoo
CASE NUMBER:  2216399
HOME AFFAIRS REFERENCE(S):          F2019/022280
MEMBER:SM Michael Cooke
DATE:14 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations
·cl 117.212 of Schedule 2 to the Regulations
·cl 117.221 of Schedule 2 to the Regulations.

Statement made on 14 April 2023 at 11:26am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – sibling relationship – half-sister – DNA test results – first degree relative relationship index – second degree relative relationship index – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.212, 117.221
CASES
Claridge v MIBP [2013] FCCA 1953
Mercado v MIAC [2007] FMCA 1216
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 25 October 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 23 April 2019. 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 of the Regulations.
The delegate refused to grant the visa because the applicant did not meet cl 117.211 and 117.212 of Schedule 2 to the Regulations because he was not an ‘orphan relative’ of the sponsor.
The Tribunal has reviewed all the existing information and additional information tendered by the applicant’s representative.
The Tribunal is of the view that the matter can be finalised ‘on the papers’ without recourse to a hearing.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is an orphan relative of her sponsor.
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…

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 Mansaray (Migration)

Details

AGLC: Mansaray (Migration) [2023] AATA 1772
Case: [2023] AATA 1772
Decision Date: 14 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The applicant sought to establish that they were an orphan relative of an Australian relative, specifically a half-sister. The core of the dispute revolved around whether the applicant met the definition of an "orphan relative" as defined by the Migration Regulations 1994, particularly concerning the familial relationship.

The Tribunal was required to determine whether the applicant qualified as an orphan relative of an Australian relative under clause 117.211 of Schedule 2 to the Migration Regulations. This involved interpreting the terms "brother" and "sister" within the context of the Regulations and considering whether these terms encompassed "half-brother" and "half-sister." The Tribunal also had to assess the evidence, including DNA test results, to establish the nature of the sibling relationship between the applicant and their alleged half-sister.

The Tribunal reasoned that the terms "brother" and "sister" should be interpreted expansively to include "half-brother" and "half-sister," drawing support from previous judicial decisions such as *Mercado v MIAC* and *Claridge v MIBP*. These cases established that a broad approach to familial relationships is appropriate in migration law. The DNA test results indicated a "likely" first-degree relative relationship and a "very likely" second-degree relative relationship between the applicant and their alleged half-sister, and between the alleged half-sister and the caregiver. Given the established judicial interpretation and the DNA evidence, the Tribunal concluded that the applicant met the criteria for being an orphan relative.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant meets the criteria specified in clauses 117.211, 117.212, and 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

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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 application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:·cl 117.211 of Schedule 2 to the Regulations· cl 117.212 of Schedule 2 to the Regulations·cl 117.221 of Schedule 2 to the Regulations.Michael CookeSenior MemberATTACHMENT – 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is an orphan relative of her sponsor.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 (the 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.Definitions The terms ‘brother’ and ‘sister’ are relevantly defined in the Macquarie Dictionary as, respectively, ‘a male child of the same parents as another (full brother)’ or ‘a male child of only one of one's parents (half-brother)’; and ‘daughter of the same parents (full sister)’ or ‘daughter of only one of one's parents (half-sister)”. Mercado v MIAC suggests that an expansive approach to the word ‘brother’, as including a ‘half-brother’ is appropriate in the context of the Regulations. In that case, the Federal Magistrates Court agreed with the Tribunal that ‘brother’ in the definition of ‘overseas near relative’ in reg 1.15(2)(a) of the Regulations, included a ‘half-brother’. The Court’s reasoning would be equally applicable to the use of the word ‘sister’ in the Regulations. Relevantly, in Claridge v MIBP the Court agreed with the reasoning set out in Mercado and found that the term ‘brother’ included ‘half-brother’. The Court noted that while the meaning to be ascribed to words may change from time to time, there is judicial authority of some antiquity supporting the reasoning adopted in Mercado. The Court further observed that by inference the same reasoning would apply to the term ‘sister’. Whether two people are in a ‘half’ relationship will generally only arise in the context of sibling relationships (i.e. brother or sister) or relationships derived from sibling relationships (i.e. aunts, uncles, nieces, nephews and cousins). The reasoning in Mercado and Claridge may be regarded as relevant wherever such relationships fall for consideration under the migration legislation. The Department requested the applicant, his sister (Aminata Mansaray) and his caregiver (Fanta Mariezan Mansaray) to undertake DNA tests to prove their potential sibship. The authorised DNA Laboratory (in Australia) gave a report in which the following information was conveyed:Individuals who are genetically related to each other will have a statistical likelihood of sharing DNA. A parent will share exactly 50% with a child while a sibling will, on average, share 50% (25% from each parent) overall with each other sibling. A half sibling would share only part of the pattern on the common parent {25%). Some siblings may share a significant number of alleles while others may share none and yet still be full siblings. Cousins are expected to share some alleles since one of their parents are siblings. Alleles can also be shared by unrelated individuals by chance in a proportion that is predicted by how common the allele is in the population.The biological relationships we performed a statistical analysis on are as follows:1st degree relatives: Full siblings2nd degree relatives: Half siblings, Aunt/Uncle to Niece/Nephew, Grandparent to GrandchildStatistically;S15829 and S10989 (The Report numbers for Fanta Mariezan Mansaray and Mohamed Mansaray)1st degree relative relationship index: 15.991st degree relative relationship is “likely"2nd degree relative relationship index: 24.95 2nd degree relative relationship is “very likely"The profiles are 15.99 times more likely if Fanta Mariezan Mansaray and Mohamed Mansaray are related as first-degree relatives than unrelated.The profiles are 24.95 times more likely if Fanta Mariezan Mansaray and Mohamed Mansaray are related as second-degree relatives than unrelated.S15829 and S10839 (The Report numbers for Fanta Mariezan Mansaray and Aminata Mansaray)1st degree relative relationship index: 15.071st degree relative relationship is “likely"2nd degree relative relationship index: 57.32 2nd degree relative relationship is “very likely"The profiles are 15.07 times more likely if Fanta Mariezan Mansaray and Aminata Mansaray are related as first-degree relatives than unrelated.The profiles are 57.32 times more likely if Fanta Mariezan Mansaray and Aminata Mansaray are related as second-degree relatives than unrelated.