Shabani (Migration) - [2021] AATA 1874

Shabani (Migration) [2021] AATA 1874 (14 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Amisa Rajabu Shabani
VISA APPLICANT:  Mr Nganga Rajabu
CASE NUMBER:  1900974
DIBP REFERENCE(S):  OSF2016/076006
MEMBER:Adrienne Millbank
DATE:14 April 2021
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 14 April 2021 at 9:56am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relatives of the sponsor – no parental care – applicant’s mother’s death – death certificate – financial assistance to the applicant’s family – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14
CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 6 November 2018 to refuse to grant the visa applicant (the applicant) a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958.
The applicant is a citizen of the Democratic Republic of Congo (DRC). He was born on 6 July 2011 and was five years old at the time of application and nine years old at the time of decision. The review applicant and sponsor (the sponsor) is his maternal aunt. The sponsor first arrived in Australia on 3 December 2012 on a Partner (Provisional) (Subclass 309) visa. She was granted a Partner (Migrant) (Subclass 100) visa on 12 March 2015.
The applicant applied for the visa on 21 December 2016. His sister, three years old at the time of application and eight years old at the time of this decision, also lodged an application, at the same time, for a Child (Migrant) (Class AH) visa, sponsored by the sponsor. That application was refused on 7 November 2018.
At the time of 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). Relevantly to this case, they include cl.117.211. This requires that the applicant : (a) is an orphan relative of an Australian relative of the applicant; or (b) is not an orphan relative only because the applicant has been adopted by the Australia relative. An ‘orphan relative’ is defined in r.1.14 as follows:
Reg.1.14
An 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:

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 Shabani (Migration)

Details

AGLC: Shabani (Migration) [2021] AATA 1874
Case: [2021] AATA 1874
Decision Date: 14 April 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The sponsor was the applicant's aunt, who was an Australian permanent resident. The core dispute revolved around whether the applicant met the definition of an "orphan relative" as defined by the Migration Regulations 1994.

The Tribunal was required to determine if the applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision. Specifically, it needed to assess whether the applicant met the criteria outlined in Regulation 1.14, which includes not having turned 18, not having a spouse or de facto partner, being a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and crucially, being unable to be cared for by either parent because they are dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered whether there was any compelling reason to believe that granting the visa would not be in the applicant's best interests.

The Tribunal found that the applicant met the age and marital status requirements of Regulation 1.14. However, it concluded that the applicant was not an orphan relative because the condition that both parents are dead, permanently incapacitated, or of unknown whereabouts was not satisfied. The decision noted that while financial assistance had been provided to the applicant's family, this did not establish that the parents were unable to care for the child. Consequently, the Tribunal affirmed the decision not to grant the visa.

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 EVIDENCE The issue in the present case is whether the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.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 sponsor, the applicant’s aunt, a permanent resident, is the relevant Australian relative. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is not met, and continues not to be met at the time of decision.Age – r.1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. A DRC birth certificate, issued in Nundu on 10 July 2011, was provided, certifying that the applicant was born in the Nundu Hospital on 6 July 2011. At the time of application, he was five years old, and, as noted, he is nine years old at the time of this decision. Accordingly, r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.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. As noted, the applicant was five years old at the time of application and is nine years old at the time of this decision. He is below the legal age of marriage, 18 years, in DRC. The Tribunal is satisfied that the applicant did not have a spouse or de facto partner at the time of application or decision. 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

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.Adrienne MillbankMemberATTACHMENT – 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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