Sheriff (Migration) - [2023] AATA 3983

Sheriff (Migration) [2023] AATA 3983 (26 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Fata Sheriff
VISA APPLICANTS:  Mr Moses Wesseh
Ms Josephine Wesseh
Ms Helen Wesseh
REPRESENTATIVE:  Ms Krshna Inocalla Capaque
CASE NUMBER:  2101009
HOME AFFAIRS REFERENCE(S):          F2017/049810
MEMBER:Kate Millar
DATE:26 October 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal has no jurisdiction in relation to the first and second named applicants’ applications for Child (Migrant) (Class AH) visas.
The Tribunal remits the third named applicant’s (Helen Wesseh’s) application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that she meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations

Statement made on 26 October 2023 at 12:41pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – nephew, nieces and aunt, half-sister of mother – relationships and parents deceased or missing –mother’s death certificate verified as genuine and father taken by soldiers, whereabouts unknown and presumed dead – another claimed sibling shown to be half-niece by DNA testing and granted visa – tests for applicants inconclusive about relationship to sponsor – third applicant shown to be half-sister of other sibling – no or inconclusive evidence of first and second applicants’ relationships – genuine birth certificates contain untrue information – formal adoption not practicable and no evidence of customary adoption – jurisdiction to combine applications limited to members of family unit – no jurisdiction for first and second applicants – decision under review remitted for third applicant
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65, 338(5), 375A, 376
Migration Regulations 1994 (Cth), rr 1.03, 1.04(2), 1.12, 1.14, 4.12(4), Schedule 2, cls 117.111, 117.211, 117.221
CASE
EC v MIMIA [2004] FCA 978
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

The applicants are citizens of Liberia who are currently living in Guinea. Mr Moses Wesseh is now [Age] years old, Josephine is [Age] years old and Helen is 23 years old. They applied for Class AH visas on 26 June 2017 on the basis that they are orphan relatives of their aunt, Ms Fata Sherriff, who is an Australian citizen.
In their application, the applicants claim their mother is Esther Wesseh, who died in 2012, and their father is Jerry Mulbah, who has been missing since 2006. Ms Sheriff says that Ms Wesseh is her half-sister.
A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused their applications because the delegate was not satisfied the applicants are related to Ms Sheriff, or that their parents are deceased or missing.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65…

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 Sheriff (Migration)

Details

AGLC: Sheriff (Migration) [2023] AATA 3983
Case: [2023] AATA 3983
Decision Date: 26 October 2023

CaseChat Overview and Summary

This matter concerned applications for a Subclass 117 (Orphan Relative) visa made by three applicants. The applicants claimed to be the nephew and nieces of Ms Sheriff, an Australian citizen. The core of the dispute was whether the applicants met the criteria for an orphan relative, specifically whether they were related to Ms Sheriff and whether their parents were deceased or missing. The Administrative Appeals Tribunal was required to determine if the applicants were indeed relatives of Ms Sheriff and if they qualified as orphan relatives under the Migration Regulations.

The Tribunal was tasked with determining the familial relationships between the applicants and Ms Sheriff, and whether the applicants' parents were deceased or their whereabouts unknown. This involved assessing the evidence presented, including birth certificates, death certificates, and DNA test results, to establish the claimed relationships and the status of the applicants' parents. A key legal issue was whether the Tribunal had jurisdiction to consider the applications, which depended on the applicants being related to Ms Sheriff and thus forming a family unit for the purpose of combined applications.

The Tribunal found that the death certificate for the applicants' mother, Esther Wesseh, was genuine and that she was deceased. It also found that the applicants' father, Jerry Mulbah, had been missing since 2006 and, given the passage of time, a presumption of death applied. However, the evidence regarding the relationship between the applicants and Ms Sheriff was inconclusive for two of the applicants. DNA testing confirmed that another claimed sibling was a half-niece to Ms Sheriff, and that individual had been granted a visa. The Tribunal found that one applicant, Josephine, was likely the half-sister of the half-niece, and thus a relative of Ms Sheriff. However, for the other two applicants, the evidence of their relationship to Ms Sheriff was insufficient to establish jurisdiction.

Consequently, the Tribunal remitted the application of Josephine for further consideration. The Tribunal determined it lacked jurisdiction to consider the applications of the other two applicants due to insufficient evidence of their relationship to the Australian sponsor.

Orders

Orders of the court

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Background

Background to the litigation

Determining if they are members of a family unit will also turn on whether they are, in fact, related. This forms part of the substantive question to be decided, and has been considered further below.BACKGROUND Ms Sheriff says the applicants’ mother, Esther Wesseh, is her half-sister. Ms Sheriff said she lived with her father and Ms Wesseh lived with her mother. During the civil war in Liberia, Ms Sheriff fled to Guinea with their father and lost contact with Ms Wesseh. Ms Sheriff says she re-established contact with Ms Wesseh through the Loma community in 2006. She did not see Ms Wesseh in person after they resumed contact. On reconnecting with Ms Wesseh, Ms Sheriff says she provided financial support to Ms Wesseh and her children, helping Ms Wesseh to establish a business. According to Ms Sheriff, Ms Wesseh’s husband, Jerry Mulbah went missing in 2006. In the Guinean war she said soldiers raped Ms Wesseh, and when her husband refused to assist, the soldiers took him away and he has not been seen since. Ms Sheriff arranged a search through Red Cross in 2013 and 2014 for Mr Mulbah, but he has not been located. In 2012, Ms Wesseh was killed, and her death certificate has been verified as genuine through the IOM. Another claimed sibling, Veronica Wesseh, was found through DNA testing to be related to Ms Sherriff as a half-niece and has been granted a visa. Veronica remains in Guinea as Ms Sheriff says she cannot separate the family members. The applicants live in Guinea, and their landlord Mr Oye Koivogui has a role as a guardian. CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicants applied for the visas on 26 June 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Regulations. The criteria include cl 117.211 which requires that the applicant is an orphan relative of an Australian relative of the person or is not an orphan relative only because the person has been adopted by the Australian relative. In separate decisions, the delegate refused to grant the visas because the delegate was not satisfied any of the applicants met cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied they were relatives of their Australian sponsor, or that their parents were deceased or missing. The issue in the present case is whether any or all of the applicants meet the definition of an orphan relative, and if they are the orphan relative of an Australian relative. If they are not related, the Tribunal may not have jurisdiction as their applications cannot be combined. 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.

Evidence

Evidence Before The Court

The applicants live in Guinea, and their landlord Mr Oye Koivogui has a role as a guardian. CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicants applied for the visas on 26 June 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Regulations. The criteria include cl 117.211 which requires that the applicant is an orphan relative of an Australian relative of the person or is not an orphan relative only because the person has been adopted by the Australian relative. In separate decisions, the delegate refused to grant the visas because the delegate was not satisfied any of the applicants met cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied they were relatives of their Australian sponsor, or that their parents were deceased or missing. The issue in the present case is whether any or all of the applicants meet the definition of an orphan relative, and if they are the orphan relative of an Australian relative. If they are not related, the Tribunal may not have jurisdiction as their applications cannot be combined. 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 Ms Sheriff, is claimed to be the relevant Australian relative. Ms Sheriff is an Australia citizen. Ms Sheriff states she is the half-sister of the applicants’ mother Ms Wesseh. The applicants provided a death certificate for Esther Wesseh with a date of death of 2 February 2012, and the death certificate has been verified by the IOM. Ms Sheriff was not in Guinea when Ms Wesseh died. Helen gave an account that her mother was in a traffic accident and died. On the information available to it, the Tribunal finds Ms Wesseh is deceased. Other than Ms Sheriff’s oral evidence that Mr Mulbah may have returned to Ms Wesseh to father Josephine, the remaining evidence including from Ms Wesseh’s [visa] applicantion is that Mr Mulbah has been missing since 2006 when he was taken by soldiers. Helen gave evidence that she has not seen her father, and has not had any contact with him. On balance, the Tribunal finds that Mr Mulbah is of unknown whereabouts, and given the time since this occurred, a presumption of death applies. DNA test results

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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