Said Ali (Migration) - [2019] AATA 5054

Said Ali (Migration) [2019] AATA 5054 (8 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Abdi Hakim Said Ali
VISA APPLICANT:  Master Yahya Hassan Said
CASE NUMBER:  1720441
DIBP REFERENCE(S):  2015075323 OSF2015075323
MEMBER:P. Maishman
DATE:8 November 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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 08 November 2019 at 2:44pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – representative’s attendance – hearing adjourned – orphan relative – age – discrepancy with school records – no parental care – verifiable documentary evidence of parents’ death – boarded a smuggler’s boat to escape from Somalia – common law presumption of death – credible witnesses – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cls 117.211, 117.221
CASES
Axon v Axon (1937) 59 CLR 395
Kim v MIAC [2007] FMCA 798
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 on 7 August 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 2 July 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 (the Regulations). Relevantly to this case, they include cl.117.211.
The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is an ‘orphan relative’ as defined.
The Tribunal listed the application to be heard on 17 October 2019. That hearing was adjourned because the representative told the Tribunal at the commencement of the hearing he was not available to stay for the listed duration of the hearing. When questioned, the review applicant said he had no option but to proceed without his representative present. The Tribunal explained the hearing could be adjourned to a date when his representative could attend and relisted the application to be heard on 4 November 2019.
The review applicant appeared before the Tribunal on 4 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abdikadir Ahmed. Mr Farah Olat Mohamed and the visa applicant gave oral evidence by telephone. The Tribunal hearing was conducted with the assistance of…

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 Said Ali (Migration)

Details

AGLC: Said Ali (Migration) [2019] AATA 5054
Case: [2019] AATA 5054
Decision Date: 8 November 2019

CaseChat Overview and Summary

This matter concerned a review of a decision concerning a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The review applicant sought to have the visa granted to the visa applicant, who claimed to be his nephew. The primary concern raised by the delegate was the lack of verifiable documentary evidence confirming the death of the visa applicant's parents, and an inconsistency between the visa applicant's age and school records.

The Tribunal was required to determine whether the visa applicant met the criteria for an orphan relative under the Migration Regulations 1994. Specifically, the Tribunal needed to assess if the visa applicant was under 18, a relative of an Australian citizen, and if both parents were deceased or their whereabouts unknown, such that the applicant could not be cared for by them. The Tribunal also had to consider whether there was any compelling reason not to grant the visa in the best interests of the applicant.

The Tribunal found that the review applicant was indeed an Australian relative of the visa applicant, supported by DNA evidence confirming a 99.98% probability of a familial relationship and the review applicant's Australian citizenship certificate. Crucially, the Tribunal accepted the oral evidence of the review applicant, the visa applicant, and other witnesses as candid, consistent, and credible. This oral evidence, combined with documentary evidence, satisfied the Tribunal that the visa applicant's parents were deceased and that the visa applicant could not be cared for by them.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration. The Tribunal directed that the visa applicant met the criteria specified in cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.

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 Tribunal had before it a copy of the Department’s file containing a copy of the visa application, sponsorship form and documents provided to the Department. The review applicant gave the Tribunal a copy of the delegate’s decision record with his application for review. The delegate was concerned there was no evidence, apart from the review applicant’s submissions, that the visa applicant’s parents had died. The delegate was also concerned that a letter of support from the visa applicant’s school gave information that was inconsistent with the claims made by the review applicant. The review applicant gave the Tribunal affidavits from the visa applicant and Mr Farah Olat Mohamed Ali sworn on 4 October 2019. The Tribunal also received a submission from the review applicant’s representative, a Pupils Progress Report for term three in year 2010, and a letter dated 27 September 2019 from the visa applicants primary school head teacher. The review applicant, the visa applicant, Mr Farah Olat Mohamed and Mr Abdikadir Ahmed gave evidence separately at the hearing. The Tribunal found the oral evidence of each of the parties to be candid and consistent. The Tribunal is satisfied that the parties’ evidence is credible and that the parties are honest witnesses. The Tribunal accepts their oral evidence on that basis. The Tribunal has given the parties oral evidence significant weight together with the documentary evidence to reach the findings below. The issue in the present case is whether the visa applicant is an orphan relative of the review applicant.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 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 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 claims to be visa applicant’s uncle. Has provided DNA evidence confirming the probability that the review applicant and the visa applicant are related is 99.98%. A file note on the Department’s file indicates that the delegate is satisfied the visa applicant is a relative of the review applicant. There is nothing to suggest that the DNA test is not genuine. The Department’s file contains a copy of the review applicant’s certificate of Australian citizenship showing he acquired Australian citizenship on 16 March 2005. The Tribunal finds the review applicant is an Australian citizen. The Tribunal is satisfied the review applicant is an Australian relative of the visa applicant.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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.P. MaishmanMemberATTACHMENT – 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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