Sheikh (Migration) - [2022] AATA 4762

Sheikh (Migration) [2022] AATA 4762 (12 December 2022)
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DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Ms Ubah Ali Sheikh
VISA APPLICANTS:Mr Abdulrashed Mohamud Ali Sheikh
Ms Fardowsa Mohamud Ali Sheikh
Ms Rahma Mohamud Ali Sheikh
Ms Zeinab Mohamud Ali Sheikh

REPRESENTATIVE:  Ms Tania Irena Mykyta
CASE NUMBER:  2111477
HOME AFFAIRS REFERENCE(S):          2017023416
MEMBER:Brendan Darcy
DATE:12 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named 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 12 December 2022 at 1:48pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of the visa applicants’ parents – one applicant’s biological family is unknown – DNA testing results – passports issued without birth certificates – child-parent relationship with adoptive parents – limited evidence of parental deaths – 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, 1.04, 1.14
CASES
EC v MIMIA (2004) 138 FCR 438
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 4 August 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 28 August 2017. 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.
For the purposes of this decision, the review applicant, Ms Ubah Ali Sheikh, will be referred to as the sponsor; the review appciant; the first named visa applicant, Abdulrashed Mohamud Ali Sheikh, will be referred to as the first applicant; the second named visa applicant, Ms Fardowsa Mohamud Ali Sheikh, will be referred to as the second applicant; the third named visa applicant, Ms Rahma Mohamud Ali Sheikh, will be referred to as the third applicant; and the fourth named applicant, Ms Zeinab Mohamud Ali Sheikh, will be referred to as the fourth applicant
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 which requires the applicant to be to be an orphan relative of an Australian relative of the applicant.
The delegate refused to grant the visas because the visa applicants did not meet cl 117.211 of Schedule 2 to the Regulations because criteria for an Orphan Relative under regulations…

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 Sheikh (Migration)

Details

AGLC: Sheikh (Migration) [2022] AATA 4762
Case: [2022] AATA 4762
Decision Date: 12 December 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by four applicants. The sponsor, an Australian citizen, claimed to be the paternal aunt of the visa applicants and asserted that the applicants' parents had died. The core of the dispute revolved around whether the visa applicants met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. The decision was made by Brendan Darcy, a Member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicants satisfied the criteria for being an orphan relative, specifically whether they were under 18, not in a relationship, and a relative of the Australian sponsor. Crucially, the Tribunal had to determine if the applicants' parents were deceased, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the best interests of the applicants. The Tribunal also considered the limited documentary evidence provided, including the absence of birth certificates and death records, and the sponsor's declaration that one applicant was not biologically related to the others.

The Tribunal reasoned that while the sponsor's claims regarding the deaths of the applicants' parents and their familial relationship were supported by statutory declarations, the evidence was limited. The absence of formal documentation, such as death certificates, and the sponsor's admission that one applicant was not biologically related to the others, presented challenges in definitively establishing the criteria. However, the Tribunal acknowledged that such documentation might be difficult to obtain in Somalia. Given these circumstances, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration. The Tribunal directed that the first named 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

The issue in the present case is whether the visa applicants meet the definition of ‘orphan relative', pursuant to regulation 1.14. Background and evidence This Class AH Subclass 117 (Orphan Relative) visa application was lodged 28 August 2017, The first applicant (Abdulrashed Sheikh), it is claimed, was born on 8 November 2001 in Mogadishu, Somalia. He was 15 years of age on the date of application, and is a citizen of Somalia. The second applicant, Fardowsa Mohamud Ali Sheikh was born on 1 January 2003. The third applicant, Rahma Mohamud Ali Sheikh was born 2 June 2004. The fourth applicant, Zeinab Mohamud Ali Sheikh was born 1 May 2005. Each visa applicant claims to be born in Somalia, and to be citizens of the Federal Republic of Somalia. In their visa application form, all visa applicants have listed their country of residence to be Kenya. The sponsor of this Orphan Relative visa application was born on 5 May 1980 in Somalia. The sponsor acquired Australian citizenship on 31 January 2005. The sponsor (born 5 May 1980) claimed to be the paternal aunt to the visa applicants. The sponsor’s own parents are listed as deceased. The sponsor’s husband was born on 10 January 1972 and acquired Australian citizenship on 25 January 2013. In a statutory declaration dated 22 August 2017, the sponsor claimed that she shared the same father as her brother, Mohaumud Ali Sheikh, although they had different biological mothers. It further states her brother’s wife, Dhofa Ahmed Arab, died in early 2015 to natural causes, while her brother was killed in a bomb explosion in Mogadishu in June 2016. There were no certifying documentation relating to either death. Since the death of the sponsor’s brother and his wife, the sponsor has been the sole provider for their three children who were related to Kenya for their safety. The sponsor further stated the children do have birth certificates, although they have Somali passports. In a statutory declaration by the sponsor dated 22 August 2017, she declares she is the applicant’s paternal aunt and that all applicants are siblings, children of her half-brother, Mohamud Ali Sheikh. She declared that birth certificates and death records were not available for the children or for the deaths of the parents. On 30 July 2019, the Department requested that each of the visa applicants provide copies of school records for 2017 to the present; evident parents were deceased; and offering DNA testing. In August 2019, the Department received a statutory declaration from the sponsor. It is dated 8 August 2019 that there are no school records, limited information about their parent’s and no death certificates created at the time of their deaths. This, it was argued, was common in Somalia. This statutory declaration further advised that the third applicant was not biologically related to the other applicants. The declaration alleged that the third applicant was found on the roadside and was taken in by the sponsor’s brother and his wife. The third applicant’s biological family is unknown, and she has known no other family.

Evidence

Evidence Before The Court

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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 applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named 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.Brendan DarcyMemberATTACHMENT – 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

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 meet the definition of ‘orphan relative', pursuant to regulation 1.14. Background and evidence This Class AH Subclass 117 (Orphan Relative) visa application was lodged 28 August 2017, The first applicant (Abdulrashed Sheikh), it is claimed, was born on 8 November 2001 in Mogadishu, Somalia. He was 15 years of age on the date of application, and is a citizen of Somalia. The second applicant, Fardowsa Mohamud Ali Sheikh was born on 1 January 2003. The third applicant, Rahma Mohamud Ali Sheikh was born 2 June 2004. The fourth applicant, Zeinab Mohamud Ali Sheikh was born 1 May 2005. Each visa applicant claims to be born in Somalia, and to be citizens of the Federal Republic of Somalia. In their visa application form, all visa applicants have listed their country of residence to be Kenya. The sponsor of this Orphan Relative visa application was born on 5 May 1980 in Somalia. The sponsor acquired Australian citizenship on 31 January 2005. The sponsor (born 5 May 1980) claimed to be the paternal aunt to the visa applicants. The sponsor’s own parents are listed as deceased. The sponsor’s husband was born on 10 January 1972 and acquired Australian citizenship on 25 January 2013. In a statutory declaration dated 22 August 2017, the sponsor claimed that she shared the same father as her brother, Mohaumud Ali Sheikh, although they had different biological mothers. It further states her brother’s wife, Dhofa Ahmed Arab, died in early 2015 to natural causes, while her brother was killed in a bomb explosion in Mogadishu in June 2016. There were no certifying documentation relating to either death. Since the death of the sponsor’s brother and his wife, the sponsor has been the sole provider for their three children who were related to Kenya for their safety. The sponsor further stated the children do have birth certificates, although they have Somali passports. In a statutory declaration by the sponsor dated 22 August 2017, she declares she is the applicant’s paternal aunt and that all applicants are siblings, children of her half-brother, Mohamud Ali Sheikh. She declared that birth certificates and death records were not available for the children or for the deaths of the parents. On 30 July 2019, the Department requested that each of the visa applicants provide copies of school records for 2017 to the present; evident parents were deceased; and offering DNA testing. In August 2019, the Department received a statutory declaration from the sponsor. It is dated 8 August 2019 that there are no school records, limited information about their parent’s and no death certificates created at the time of their deaths. This, it was argued, was common in Somalia. This statutory declaration further advised that the third applicant was not biologically related to the other applicants. The declaration alleged that the third applicant was found on the roadside and was taken in by the sponsor’s brother and his wife. The third applicant’s biological family is unknown, and she has known no other family.