Roble (Migration) - [2023] AATA 521

Roble (Migration) [2023] AATA 521 (14 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Yahya Hussein Roble
VISA APPLICANTS:  Mr Ayow Hussein Roble
Mr Khadar Hussein Roble
CASE NUMBER:  2119915
HOME AFFAIRS REFERENCE(S):          2019008988 & 2019009081
MEMBER:Justin Meyer
DATE:14 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:
· cl 117.211 of Schedule 2 to the Regulations; and
· cl 117.221 of Schedule 2 to the Regulations.

Statement made on 14 March 2023 at 11:41am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – DNA testing results – death of parents – best interests of the visa applicants – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14
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 Home Affairs on 14 October 2021 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 31 October 2019. 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 and 117.221.
The delegate refused to grant the visas because (per his decisions for both visa applicants):
You claim that the sponsor Mr. Yahya Hussein ROBLE is your brother. In assessing these claims I have considered historic information from previous applications involving your sponsor.
The sponsor was granted a Child (Class AH) Orphan Relative (Subclass 117) visa on 12 July 2010 and arrived in Australia on 08 September 2010. Since his arrival, he has not departed Australia. At time of his subclass 117 visa application, his sponsor (aunt) advised that your sponsor’s parents and three of their children were killed in August 2008 in Mogadishu when their house was attacked. In respect to his parents, the sponsor (aunt) did not provide any secondary marriages or children.
Given the conflicting information on the family composition in your claimed brother’s (sponsor) and your current application, a natural justice letter was sent to you on 08 September 2021. An invitation to undertake DNA testing to determine your exact relationship to your sponsor was also sent on 08 September 2021. The letters gave 28 days in which to respond.
As of 14 October 2021, time of decision, you…

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 Roble (Migration)

Details

AGLC: Roble (Migration) [2023] AATA 521
Case: [2023] AATA 521
Decision Date: 14 March 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), brought before the Tribunal by Mr Yahya Hussein Roble, an Australian citizen, who was the brother of the visa applicants. The central dispute revolved around whether the visa applicants qualified as "orphan relatives" of Mr Roble, as defined by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicants met the criteria for being an orphan relative of an Australian relative at the time of their application and at the time of the decision. Specifically, this involved assessing whether they had not turned 18, did not have a spouse or de facto partner, were a relative of an Australian citizen, could not be cared for by either parent because both were deceased, and whether granting the visa would be in their best interests. The Tribunal also had to consider the weight to be given to documentary evidence, such as birth certificates, in the context of potential document fraud in Somalia, while also acknowledging the difficulties in obtaining such documents legitimately in that country.

The Tribunal reasoned that while Somali birth certificates are treated with some caution due to the prevalence of document fraud, they must also be considered in light of the challenges of obtaining legitimate documentation in an underdeveloped and conflict-affected nation. The Tribunal found that the visa applicants' parents had died in August 2008, a fact supported by evidence and previously accepted by the department in a related matter. Consequently, the Tribunal was satisfied that the visa applicants could not be cared for by either parent and that granting the visa would be in their best interests, given the hardship in Somalia and the care offered by their brother.

Accordingly, the Tribunal concluded that the visa applicants met the criteria under cl 117.211 and cl 117.221 of Schedule 2 to the Regulations. The applications were remitted to the Minister for reconsideration, with the direction that these specific criteria had been met.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicants are orphan relatives.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, 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, the Review Applicant, Mr Yahya Hussein Roble, is the relevant Australian relative. He is the brother of the visa applicants. He is an Australian citizen. For the reasons below, the visa applicant were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. There is evidence is in the form of Somali birth certificates of 23 July 2019, which lists the birthdates of the applicants, which match the dates and names given the visa applications. Therefore, the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicants provide documentary evidence that they are presently aged 18 and 19. They were all under 18 at the time of application. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18.Spouse or de facto partner – r.1.14(a)(ii) Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Having questioned the applicants and examined all materials before me there is no evidence that this has occurred. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision. Relative – r.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 r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

Decision

Reasons for decision

Given the prevalence of document fraud in countries such as Somalia, the documents are treated with some lower weighting. However, balanced against this is the difficulty in obtaining such documents legitimately in what is an underdeveloped country, and considered in some quarters to be a failed state.[1] On balance, I give some regard to this documentation. [1] >I also give consideration to the conflict in Somalia, especially at the period in question (2008). It is correct that there were attacks in Mogadishu during different months of that year. Ethiopian and Somali armed conflict took place. There were hundreds of civilian deaths in that year. Violence in August 2008 in Mogadishu is depicted in at least one human rights organisation’s account of the time. [2][2] "So Much to Fear": War Crimes and the Devastation of Somalia | HRW >I have seen no evidence to suggest that this event did not occur and note that the department accepted this as fact in the review applicant’s (sponsor’s) own orphan relative visa decision regarding these circumstances, more than a decade ago. I do not depart from that conclusion.Therefore, the Tribunal is not satisfied - on the evidence before it - that there is a good reason to question the death of the parents of the visa applicants.The Tribunal concludes that the visa applicants’ parents died in August 2008.I find the visa applicants cannot be cared for by either parent because each of them is dead.Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.Best interests – r.1.14(c)Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicants. Given the hardship in Somalia and care offered by the review applicant (sponsor) this would be in their best interests. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.Given the findings above, cl.117.211 is met.The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18. It follows that cl.117.221 is met.Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.DECISIONThe Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:·cl 117.211 of Schedule 2 to the Regulations; and·cl 117.221 of Schedule 2 to the Regulations.Justin MeyerMemberATTACHMENT – 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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