Shah (Migration) - [2019] AATA 3765

Shah (Migration) [2019] AATA 3765 (29 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Sayed Ahmad Shah
VISA APPLICANT:  Mr Sayed Ahmad Ajmal
CASE NUMBER:  1701090
DIBP REFERENCE(S):  2016/036506 OSF2016/036506
MEMBER:Amanda Mendes Da Costa
DATE:29 May 2019
PLACE OF DECISION:  Melbourne
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 29 May 2019 at 10:00am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative ’ of an Australian relative – maternal uncle – mother passed away in traffic accident – no death certificate issued – father disappeared soon after – whereabouts unknown – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.221
CASES
Axon v Axon (1937) 59 CLR 395
EC v MIMIA [2004] FCA 978
Kim v MIAC [2007] FMCA 798
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 20 November 2016 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 13 January 2016. 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 and cl.117.221.
The delegate refused to grant the visa because the applicant did not meet cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant met the definition of orphan relative as set out in r.1.14(b) and therefore did not meet the requirements of cl.117.211 to Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sayed Ahmad Ajmal, the visa applicant, by telephone from Kabul, Afghanistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The review applicant provided the following documents to the Tribunal for the purposes of the review:
·Copy of the bio-pages of the visa applicant’s Afghan passport.
·Tazkira identity card No. [number] for the visa applicant.
·Family…

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 Shah (Migration)

Details

AGLC: Shah (Migration) [2019] AATA 3765
Case: [2019] AATA 3765
Decision Date: 29 May 2019

CaseChat Overview and Summary

This matter concerned a review of a decision regarding a Subclass 117 (Orphan Relative) visa application. The review applicant, Mr. Shah, is the maternal uncle of the visa applicant. The dispute centred on whether the visa applicant met the definition of an "orphan relative" under the Migration Regulations 1994, specifically concerning the death of her mother and the disappearance of her father. The decision was made by Amanda Mendes Da Costa, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the visa applicant could be cared for by either parent, as required by paragraph 1.14(b) of the Migration Regulations 1994. This involved assessing whether the visa applicant's mother was deceased and her father was of unknown whereabouts, and whether there was sufficient evidence to support these claims, particularly in the absence of a formal death certificate for the mother. The Tribunal also had to consider the delegate's concerns regarding the timing and provenance of documentary evidence submitted to support the application.

The Tribunal reasoned that while a formal death certificate for the visa applicant's mother was not available, the evidence presented, including the affidavit from the maternal uncle and his testimony, established that the mother had died in a traffic accident in Afghanistan. The Tribunal accepted that the absence of a death certificate was not unusual in Afghanistan and that the father's whereabouts were unknown. Consequently, the Tribunal found that the visa applicant met the criteria of being unable to be cared for by either parent. The Tribunal also considered the evidence regarding the visa applicant's age and lack of spouse or de facto partner, and the fact that her uncle and aunt wished to assume responsibility for her supervision.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration. The Tribunal directed that the visa applicant be considered to meet the criteria set out in clauses 117.211 and 117.221 of Schedule 2 to the Migration Regulations 1994.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The delegate expressed concern about the letter dated 1 August 2016 being issued 10 years after the apparent death of visa applicant’s mother on the basis of verbal testimony. The delegate was also concerned that the document was acquired solely for the purposes of supporting the claims made in the visa application. Evidence of review applicant – Sayed Ahmad Shah The review applicant is the maternal uncle of the visa applicant. He was born in Kabul, Afghanistan and lived there until his arrival in Australia in February 2014. The Tribunal notes that the Affidavit (Supervision Certificate) dated 4 February 2019 records that the Confessors to the document, being Ail Mohammad Khair Mohammad and Wahidullah Mohammad Kazim, attest to the visa applicant’s birth on 4 June 1999; that the applicant’s mother died in a traffic accident; that his father has disappeared; that the visa applicant has no administrator; and that his uncle and aunt are living abroad and wish to assume responsibility for the visa applicant’s supervision. Mr Shah’s parents are no longer living. His father died 23 years ago and his mother died in or around 2012. Mr Shah was not able to remember exactly when. He originally had 4 brothers and three sisters, 3 of whom are still living. One of his brothers lives in the USA, another in Australia and one of his sisters lives in Iran. Mr Shah said that his late sister Ruqia (the visa applicant’s mother) lived with her husband (Sayed Bostan) and two sons (Syed Ahmad and the visa applicant Sayed Ajmal) in a house in Kabul occupied by himself, his mother and other members of their family until his sister’s death in 2015. The visa applicant’s father was an army officer with the rank of Lieutenant-Colonel. Mr Shah explained that at the time of his sister’s death the visa applicant and his older brother were very young. Mr Shah told the Tribunal that his sister died in a car accident when she and her husband and children were travelling to Mazar e Sharrif, a city situated in northern Afghanistan. She died approximately three days after leaving Kabul with her family. Mr Shah said that the family had travelled to Mazar e Sharrif for a spring holiday as it was a popular place for holiday makers. Mr Shah was not aware of the circumstances leading to the accident but was told by his brother-in-law that his sister had sustained serious head injury and died in hospital in Mazar e Sharrif. His sister’s body was transported to Karta Sakhi near Kabul where she was buried. The funeral was attended by his brother-in-law, his nephews, his mother and other members of the family. Thereafter, Mr Shah and other family members took his two nephews to visit their mother’s grave, usually on Friday night. Mr Shah explained that there was no death certificate issued by the Afghan authorities when his sister died. That was not unusual in Afghanistan where it was permissible to have a funeral and bury a person without a death certificate. He said that official documentation was often only issued when required for a specific purpose such as application for a passport or university admission.

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.Amanda Mendes Da CostaMemberATTACHMENT – 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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