Omer (Migration) - [2022] AATA 2682

Omer (Migration) [2022] AATA 2682 (2 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Hawi Mohamed Omer
VISA APPLICANTS:  Mr Omer Mohamed Omer
Master Gamachu Mohamed Omer
Miss Mabruka Mohamed Omer
Miss Qanani Mohamed Omer
Mr Caya Mohamed Omer
CASE NUMBER:  1716503
HOME AFFAIRS REFERENCE(S):          2015075732
MEMBER:David Crawshay
DATE:2 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 02 June 2022 at 9:54am
CATCHWORDS
MIGRATION– cancellation – Subclass AH (Orphan Relative) visa – Subclass 117– visa applicants were not orphan relatives of an Australian relative at the time of application – no contemporaneous evidence of the claimed disappearance of Arebu or the claimed death of Mohamed – not satisfied that the visa applicants cannot be cared for by either of their parents because each of their parents is dead or of unknown whereabouts – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.03,1.14, Schedule 2, cls 117.111, 117.211
CASES
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 Immigration and Border Protection on 18 July 2017 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 comprise Mr Omer Mohamed Omer as first-named visa applicant and four other visa applicants – all of whom are claimed to be siblings of the review applicant. The review applicant and the visa applicants will hereafter be referred to as “the parties”. The visa applicants applied for the visas on 23 December 2015. 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 which requires a visa applicant to be the orphan relative of an Australia relative.
The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations. Specifically, the delegate was not satisfied that the visa applicants could not be cared for by either parent because each of those parents is dead, permanently incapacitation or of unknown whereabouts.
The review applicant appeared before the Tribunal on 12 July 2021 to give evidence and present arguments (initial hearing). The Tribunal also received oral evidence from the first-named visa applicant, Mr Caya Omer, and Miss Qanani Omer. A further hearing was held on 23 July 2021 in which the review applicant’s non-travelling brother, Mr Ibsa Omer was questioned (second hearing). The second hearing was conducted by means of Microsoft Teams video. A third,…

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 Omer (Migration)

Details

AGLC: Omer (Migration) [2022] AATA 2682
Case: [2022] AATA 2682
Decision Date: 2 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision concerning visa applicants seeking Subclass 117 (Orphan Relative) visas. The review applicant, who is an Australian relative of the visa applicants, sought to have the decision not to grant these visas set aside.

The primary legal issue before the Tribunal was whether the visa applicants met the definition of "orphan relative" as defined in the Migration Regulations 1994, both at the time of their visa application and at the time of the Tribunal's decision. This required determining if the applicants were under 18, a relative of an Australian citizen, and crucially, if they could not be cared for by either parent because each parent was dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal found that there was insufficient evidence to satisfy the requirements of Regulation 1.14(b). Specifically, the Tribunal was not satisfied that the visa applicants could not be cared for by either parent because each of them was dead, permanently incapacitated, or of unknown whereabouts. While the review applicant provided an account of her mother's disappearance and claimed her father was absent, there was no contemporaneous evidence to support the claimed disappearance of the mother or the death of the father. The Tribunal noted that permanent incapacity refers to an indefinite impairment of a parent's ability to care for a child, not merely a refusal or unwillingness to do so.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants Child (Migrant) (Class AH) visas, as they did not meet the criteria for being orphan relatives.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 issue in the present case is whether the visa applicants were and continue to be orphan relatives of the review applicant pursuant to the Migration Regulations.Are the visa applicants orphan relatives of an Australian relative? Clause 117.211 requires that at the time of application a visa applicant is an orphan relative of an Australian relative (cl.117.211(a)) or is not an orphan relative only because that visa applicant has been adopted by an Australian relative (cl.117.211(b)). A 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 a 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, as the sister of the visa applicants, is the relevant Australian relative. For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are not orphan relatives 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.No parental care – r.1.14(b) Regulation 1.14(b) requires that a visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J. At the initial hearing, the review applicant was asked about the claimed disappearance of her mother. She said that it occurred on 14 October 2011, and she found out a few days later from her older brother, Mr Ibsa Mohamed Omer, who is a non-migrating relative of her. She said that she also spoke to Mohamed, her father. When asked what efforts were made to attempt to locate Arebu, her mother, the review applicant told it that Mohamed had reported it to the police. The review applicant said that she had no idea where Arebu might have gone. She said that Mohamed went to visit Arebu’s relatives to see if she was there, but she was not. When asked about why Arebu would have left the family, the review applicant said that it might have been due to the pressure she received from Mohamed’s family. The review applicant said that her maternal uncle had married her paternal aunt but, because of disagreement, they divorced. She said that there was a dispute about property thereafter (Arebu’s family were given a farm as an inheritance) and her father’s sisters used to abuse Arebu physically and verbally. In one such incident, it was claimed that Mohamed’s sisters threw rocks at her when he was not at home. It was claimed that Arebu would tell Mohamed about these incidents but he would do nothing.

Decision

Reasons for decision

There is no evidence to show that the visa applicants meet the requirements of Subclass 101 (Child) visas or a Subclass 102 (Adoption) visas.DECISION The Tribunal affirms the decision not to grant the visa applicants Child (Migrant) (Class AH) visas.David CrawshayMemberATTACHMENT – 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

Full text does not contain this section.