Naidoo (Migration) - [2024] AATA 647

Naidoo (Migration) [2024] AATA 647 (29 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Dr Thrivalen Krishna Naidoo
VISA APPLICANT:  Miss Surayah Ally
CASE NUMBER:  2105319
HOME AFFAIRS REFERENCE(S):          F2020/816750
MEMBER:Edward Howard
DATE:29 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Statement made on 29 January 2024 at 11:39am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – at the time of application the visa applicant’s father’s whereabouts were clearly known – neither of the visa applicant’s parents were dead, permanently incapacitated or of unknown whereabouts – applicant cannot be considered an orphan – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr, 1.03, 1.14, Schedule 2, cls 117.111, 117.211,117.221

CASES
EC v MIMIA [2004] FCA 978
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 10 March 2021 to refuse to grant the review applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant applied for the visa on 23 March 2020. 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 review applicant is Dr Thrivalen Krishna Naidoo, aged 45 years, an Australian citizen. The visa applicant is Miss Surayah Ally, aged 21 years, a citizen of South Africa.
The review applicant claims to be the maternal uncle of the visa applicant.
The delegate refused to grant the visa because the delegate found that the visa applicant did not meet the requirements of reg 1.14(a)(iii) and reg 1.14(b) and therefore failed to satisfy cl 117.211 of Schedule 2.
The review applicant appeared before the Tribunal on 19 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Miss Surayah Ally.
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?
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 a clause 117.211.
Clause 117.211(a) requires that, at the time of application, the visa applicant is the orphan relative of an Australian relative. Clause 117.211(b) requires that, at the time of application, the visa applicant is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in cl.117.211(a). The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA

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 Naidoo (Migration)

Details

AGLC: Naidoo (Migration) [2024] AATA 647
Case: [2024] AATA 647
Decision Date: 29 January 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicant sought review of a decision to refuse this visa. The core of the dispute revolved around whether the applicant met the definition of an "orphan relative" as defined in the Migration Regulations 1994 (Cth). The decision was made by Edward Howard, a Member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicant satisfied the criteria for an orphan relative under clause 117.211 of Schedule 2 to the Migration Regulations, read in conjunction with regulation 1.14. Specifically, the Tribunal had to determine if the applicant was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, if the applicant could not be cared for by either parent because each of them was either dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal found that the visa applicant was indeed a niece of the review applicant, who was an Australian permanent resident, thus satisfying the "relative" requirement under regulation 1.14(a)(iii). However, the Tribunal determined that the applicant did not meet the criteria under regulation 1.14(b). The evidence clearly indicated that the whereabouts of the visa applicant's father were known, and neither of the applicant's parents were dead, permanently incapacitated, or of unknown whereabouts. Consequently, the applicant could not be considered an orphan relative for the purposes of the Subclass 117 visa.

As the visa applicant failed to meet the essential criteria for the Subclass 117 visa, the Tribunal affirmed the decision not to grant the visa. No claims were advanced in respect of any other visa subclasses within Class AH.

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? 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 a clause 117.211. Clause 117.211(a) requires that, at the time of application, the visa applicant is the orphan relative of an Australian relative. Clause 117.211(b) requires that, at the time of application, the visa applicant is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in cl.117.211(a). The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978. ‘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: per 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. It is claimed that the review applicant is the relevant Australian relative. As noted above, the delegate refused to grant the visa as the visa applicant did not meet the requirements of reg 1.14(a)(iii) and reg 1.14(b) and therefore failed to satisfy cl 117.211 of Schedule 2. The Tribunal will consider these two specific requirements of reg 1.14 in this decision record, for the purpose of assessing whether the visa applicant meets cl.117.211 at the time of application.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. The review applicant claims to be the brother of the visa applicant’s mother and therefore the visa applicant’s maternal uncle. In this regard, the parties provided the Department and Tribunal with various evidence including, letters from the review applicant and the visa applicant, letters from the visa applicant’s mother and father, a ‘Consent by Minor’ document sworn by the visa applicant acknowledging that the review applicant had been granted permanent legal guardianship of her by her biological parents and a ‘Letter of Authority’ document signed by her parents granting permanent guardianship to the review applicant. The review applicant also provided the personal identification books of his parents, which they hold under South African law. He has also supplied his own birth certificate, the visa applicant’s birth certificate and the visa applicant’s mother’s birth certificate. Having regard to all of the evidence, the Tribunal finds that the visa applicant is the daughter of the review applicant’s sister and hence his niece and therefore a relative of the review applicant as required by regulation 1.14(a)(iii).No parental care – reg 1.14(b)

Decision

Reasons for decision

Given the above findings, 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.Edward HowardMemberATTACHMENT – 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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