Mlobane (Migration) - [2020] AATA 4097

Mlobane (Migration) [2020] AATA 4097 (19 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Sikhumbulekile Mlobane
VISA APPLICANT:  Miss Menzisi Ndlovu
CASE NUMBER:  1721518
DIBP REFERENCE(S):  OSF2016/075738
MEMBER:Christine Kannis
DATE:19 July 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 19 July 2020 at 11:44am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – relationship between visa applicant and sponsor – half-aunt and niece – sponsor did not list applicant’s mother as sibling on previous visa application – inconsistent evidence – DNA testing unable to accurately report on such relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(a)(iii), Schedule 2, cls 117.111, 117.211(b), 117.221

CASE
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 Immigration on 4 July 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
At the time the visa applicant applied for the visa, 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). Relevantly to this case, they include cl.117.211 and cl.117.221.
The delegate refused to grant the visa because he/she decided the visa applicant was over the age of 18 at the time the application was made and did not meet cl.117.211.
The review applicant appeared before the Tribunal on 7 October 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The delegate refused the visa based on the visa applicant being 18 at the time of application. The delegate found the application was made on 2 May 2016.
The review applicant disagreed with the delegate and provided a receipt for payment of fees dated 29 October 2015 which was identified as payment for “AH 117 Orphan Relative” and the visa applicant was named as the potential applicant. The information on the Department’s file indicates that initially the application was not lodged because of insufficient credit card funds however this appeared to have been remedied by 29 October 2015. The Tribunal places weight on the receipt for payment of fees and finds that the application was lodged on 29 October 2015 and accordingly proceeds on the basis that the time of application was 29 October 2015.
The issue in the present case is whether the visa applicant is an orphan relative of an Australian relative.
Is the…

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 Mlobane (Migration)

Details

AGLC: Mlobane (Migration) [2020] AATA 4097
Case: [2020] AATA 4097
Decision Date: 19 July 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Sikhumbulekile Mlobane against a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), for her niece. The primary dispute revolved around the relationship between the applicant and the sponsor, and whether the applicant qualified as an "orphan relative" under the Migration Regulations 1994. The Tribunal was required to determine the correct date of application and whether the applicant met the criteria for an orphan relative at that time and at the time of the decision.

The Tribunal considered whether the visa applicant was an orphan relative of an Australian relative, as defined by clause 117.211 of the Regulations. This required the applicant to be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, be under 18, not have a spouse or de facto partner, and be unable to be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also had to consider whether there was any compelling reason against granting the visa in the applicant's best interests.

The Tribunal found that the application was lodged on 29 October 2015, based on a fee payment receipt, and not at a later date as initially determined by the delegate. However, the Tribunal concluded that the applicant did not meet the definition of an orphan relative. Specifically, the Tribunal noted that the sponsor, Mrs Mlobane, had not listed the applicant's mother as a sibling on a previous visa application, creating inconsistent evidence. Furthermore, DNA testing was unable to definitively establish the required familial relationship. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.

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 EVIDENCE The delegate refused the visa based on the visa applicant being 18 at the time of application. The delegate found the application was made on 2 May 2016. The review applicant disagreed with the delegate and provided a receipt for payment of fees dated 29 October 2015 which was identified as payment for “AH 117 Orphan Relative” and the visa applicant was named as the potential applicant. The information on the Department’s file indicates that initially the application was not lodged because of insufficient credit card funds however this appeared to have been remedied by 29 October 2015. The Tribunal places weight on the receipt for payment of fees and finds that the application was lodged on 29 October 2015 and accordingly proceeds on the basis that the time of application was 29 October 2015. The issue in the present case is whether the visa applicant is an orphan relative of an Australian relative. 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 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 r.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): r.1.03. In the present case, the review applicant, Mrs Sikhumbulekile Mlobane, is the relevant Australian relative. Subclass 117 requires that at the time of application and decision the visa applicant is the ‘orphan relative’ of an Australian relative as defined in r.1.14. A visa applicant is an orphan relative if he or she:-is a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; -has not turned 18;-does not have a spouse or de facto partner;-cannot be cared for by either parent[1] because each of them is either dead, permanently incapacitated or of unknown whereabouts; and-there is no compelling reason to believe that the visa grant would not be in the applicant’s best interests.[1] ‘Parent’ is defined in s.5(1) of the Act. See also r.1.14A(1) of the Regulations (post 1 July 2009) which specifies that a reference to ‘parent’ includes ‘step-parent’. At the time of decision the visa applicant must continue to satisfy the criterion in cl.117.211 (orphan relative or adopted), or not continue to satisfy that criterion only because she has turned 18.

Decision

Reasons for decision

For the reasons stated above, 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 decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Christine KannisMemberATTACHMENT – 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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