Pol (Migration) - [2018] AATA 4040

Pol (Migration) [2018] AATA 4040 (28 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Makem Ater Pol
VISA APPLICANT:  Mr Majur Ater Pol Makem
CASE NUMBER:  1614936
DIBP REFERENCE(S):  2015075035
MEMBER:Kira Raif
DATE:28 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 28 August 2018 at 11:40am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – DNA testing – half-sibling – incorrect name and date of birth – application completed by another – self-reported age documents – schooling records – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2 cls 117.211, 117.221
CASES
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 25 August 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958.
The visa applicant is a national of South Sudan and claims to have been born in April 1998. The visa applicant applied for the visa on 15 April 2015. The delegate refused to grant the visa because the applicant did not meet cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was an orphan relative of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 27 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the time of the application, 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: 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…

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

AGLC: Pol (Migration) [2018] AATA 4040
Case: [2018] AATA 4040
Decision Date: 28 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 117 (Orphan Relative) visa. The applicant sought review of the delegate's decision to refuse the visa. The core of the dispute revolved around the applicant's claimed relationship to the sponsor, specifically whether they were half-siblings, and the validity of the supporting documentation provided.

The primary legal issue before the Tribunal was whether the applicant met the eligibility criteria for a Subclass 117 visa, particularly the requirement to establish a familial relationship with the sponsor. This involved assessing the reliability and authenticity of the evidence presented, including DNA testing results, documents containing an incorrect name and date of birth, an application completed by another individual, and self-reported age documents and schooling records.

The Tribunal's reasoning focused on the deficiencies in the evidence. It found that the DNA testing results, while indicating a half-sibling relationship, were undermined by discrepancies in the applicant's identifying details. The Tribunal also noted that the application had been completed by another person and that the self-reported age documents and schooling records were not sufficiently robust to establish the claimed relationship with the required degree of certainty. Consequently, the Tribunal concluded that the applicant had not satisfied the criteria for the grant of the visa.

The Tribunal affirmed the delegate's decision not to grant the applicant a Child (Migrant) (Class AH) visa.

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

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 decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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