Mohamed (Migration) - [2022] AATA 126

Mohamed (Migration) [2022] AATA 126 (19 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Ayantu Tofik Mohamed
VISA APPLICANTS:  Ms Ibsitu Zakariya Ahmed
Mr Yahya Zakariya Ahmed
CASE NUMBER:  1835796
HOME AFFAIRS REFERENCE(S):          2016046763 OSF2016046763
MEMBER:M. Edgoose
DATE:19 January 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 19 January 2022 at 10:52am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – specified relationship – half-siblings – limited documentary and oral evidence – request for time to provide further documents and DNA not granted – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(a)(iii), Schedule 2, cls 117.111, 117.211
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 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 11 April 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 19 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo 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 decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 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,…

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 Mohamed (Migration)

Details

AGLC: Mohamed (Migration) [2022] AATA 126
Case: [2022] AATA 126
Decision Date: 19 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision concerning applications for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative). The applicant sought to establish that they were an orphan relative of an Australian relative, Ms Ayantu Tofik Mohamed. The core of the dispute revolved around whether the applicant met the definition of an "orphan relative" as defined in the Migration Regulations 1994, and whether the applicant was a "relative" of the Australian citizen.

The Tribunal was required to determine if the visa applicant satisfied the criteria for an orphan relative visa, specifically whether the applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision. This involved assessing whether the applicant was under 18, not in a relationship, and a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Furthermore, the Tribunal had to consider if the applicant's parents were deceased, permanently incapacitated, or of unknown whereabouts, and if granting the visa would be in the applicant's best interests.

The Tribunal found that the applicant had not provided sufficient evidence to establish the claimed relationship with the Australian relative. Limited documentary evidence, including photographs and a translated court document, was submitted. The photographs were given little weight due to a lack of authentication, and the court document was deemed unhelpful as it did not name the applicant or establish the claimed familial link. The Tribunal also noted that a request for additional time to provide further documents and DNA evidence was not granted. Consequently, the Tribunal concluded that the criteria for the Subclass 117 visa were not met.

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

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, Ms Ayantu Tofik Mohamed, 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. On 13 January 2022 the review applicant submitted to the Tribunal two photographs claiming that these photos included herself and the visa applicants. The review applicant claims that the first photograph was taken when the visa applicants were young children and included their biological mother. The review applicant claims that the second photograph is of the two visa applicants, her sister and herself. The review applicant claims to be the half-sister of the visa applicants depicted in the photographs. The Tribunal notes that this is the only physical evidence the review applicant submitted to the Tribunal prior to the hearing. Given that no other documental evidence has been provided to support the authentication of the review applicant’s claim of being the half-sister of the people within the photographs the Tribunal gives this submission little weight. On 14 January 2022 the review applicant submitted to the Tribunal a translated version of a court document dated 13 July 2013. The Tribunal notes that the original non-English version of this translated court document was not submitted. The translated court document stated that the visa applicants were the applicants in that matter. In summary the visa applicants were asking the court to confirmed that they, the visa applicants, were the first-degree heirs of the deceased. The court mentioned that the deceased had five children and that three of the descendants live abroad and only two are living in Ethiopia. The court found that the visa applicants were the first-degree heirs of the deceased but did not name the review applicant or the other two descendants living abroad in its decision. The Tribunal considers the court document does not provide any information regarding the claimed relationship between the review applicant and the visa applicant’s and for this reason the Tribunal gives the court document little weight.

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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