Meresa (Migration) - [2019] AATA 2658

Meresa (Migration) [2019] AATA 2658 (29 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Abeba Belay Meresa
VISA APPLICANT:  Ms Feven Gebregziabher Weldearegay
CASE NUMBER:  1611109
DIBP REFERENCE(S):  OSF2014044285
MEMBER:Kira Raif
DATE:29 March 2019
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; and
·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 29 March 2019 at 3:22pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of Australian relative – niece of sponsor – death of mother – father physically and mentally incapacitated to provide care – sponsor providing emotional and financial support – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 102.211, 117.111, 117.211, 117.221, rr 1.03, 1.14
CASES
Nguyen v MIMA (1998) 158 ALR 639
Singh v Minister for Immigration & Anor [2008] FMCA 587
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 Immigration on 31 May 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a national of Ethiopia born in December 1998. She applied for the visa on 24 June 2014. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was an orphan relative of her Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
At the time the application was made, 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 (the Regulations). 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:…

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.

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Details

Case: [2019] AATA 2658
Decision Date: 29 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by a niece of an Australian sponsor. The applicant's mother had passed away, and her father was physically and mentally incapacitated, rendering him unable to provide care. The sponsor had been providing emotional and financial support to the applicant.

The Tribunal was required to determine whether the applicant met the criteria for an Orphan Relative visa, specifically concerning the death or incapacitation of her parents and the sponsor's eligibility to support her. The core issue revolved around establishing that the applicant was an "orphan relative" as defined by the relevant regulations and that the sponsor met the necessary sponsorship requirements.

The Tribunal found that the applicant met the criteria outlined in clauses 117.211 and 117.221 of Schedule 2 to the Migration Regulations 1994. Consequently, the Tribunal remitted the application to the Minister for further consideration of the remaining visa criteria, directing that the applicant had satisfied these specific orphan relative requirements.

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; and·cl.117.221 of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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