Shone (Migration)

[2021] AATA 2830

Shone (Migration) [2021] AATA 2830 (5 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sofia Musa Shone

VISA APPLICANTS:  Ms Nejat Musa Shone

Ms Lubaba Musa Shone (withdrawn)

CASE NUMBER:  1822033

HOME AFFAIRS REFERENCE(S):          2016046570, 2016046569

MEMBER:James Lambie

DATE:5 July 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first 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 05 July 2021 at 12:03pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of parents – verified death certificates for parents – security situation in the Western Oromia Region – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14; Schedule 2, cls 117.111, 117.211, 117.221

CASES

Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 June 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) (Subclass 117) visas under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The visa applicants applied for the visa on 5 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.

3. 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 clause 117.211, which 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.

4. ‘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, Sofia Musa Shone, is the relevant Australian relative.

5. The delegate refused to grant the visa because the applicant did not meet clause 117.211 of Schedule 2 to the Regulations because Departmental checks on the applicants’ school records revealed that “the applicant was enrolled at the school by her father, Musa Shone” and “the school last had direct contact with the applicant’s father in 2015.” The applicants claimed in their visa applications that their father died on 10 January 2014.

6. The review applicants appeared before the Tribunal on 26 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

8. On 25 January 2021, the second visa applicant’s application for review was withdrawn.  The reference to the ‘visa applicant’ below therefore refers only to the first applicant, Ms Nejat Musa Shone.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the criteria for the grant of a Child (Class AH) Orphan Relative (Subclass 117) visa.

    Is the visa applicant an orphan relative of an Australian relative?

11. 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.

12. ‘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, Sofia Musa Shone, is the relevant Australian relative.

13. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.

    Age – reg 1.14(a)(i)

14. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The review applicant supplied a valid Ethiopian birth certificate showing that the visa applicant was born on 6 September 2001. She was therefore 14 years and 4 months old at the time of application and is now 19 years old. Accordingly, reg 1.14(a)(i) was met at the time of application and does not continue to be met at the time of decision.

    Spouse or de facto partner – reg 1.14(a)(ii)

15. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no suggestion that the visa applicant has a spouse or de facto partner. I give credit to the review applicant’s evidence in this regard, she having withdrawn the second visa applicant’s application on learning of her marriage. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

16. 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

17. The review applicant is an Australian permanent resident. The review applicant declared the visa applicant as her sister in her application for a subclass 200 humanitarian visa prior to her arrival in Australia in November 2013, as well as providing the names of her parents. The same parents are named in the visa applicant’s birth certificate referred to in paragraph 14 above. I am satisfied that, as her biological full sister, the visa applicant is a relative of the review applicant (within the meaning of reg 1.03 as set out above) at the time of application and decision. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

18. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

19. The review applicant has submitted verified death certificates for her parents, dated 11 January 2014 in the case of her father, and 20 September 2014 in the case of her mother. I am therefore satisfied that the visa applicant cannot be care for by either parent because each of them is dead. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – reg 1.14(c)

20. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. Evidence was submitted by the review applicant, which included letters of support from Nur Cagla Omer Yildirimoglu of the Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT) and Abebe Tullu of the Queensland Oromo Community Council, that the safety of the visa applicant in the current circumstances in the Western Oromia Region of Ethiopia is precarious. There is no suggestion that the grant of a visa would not be in the best interests of the visa applicant. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

21. Accordingly, cl 117.211(b) is met, and does not continue to be met at the time of decision.

    Conclusion on time of application criterion:

22. Given the findings above, cl 117.211 is met.

    Conclusion on time of decision criterion:

23. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, but only because the visa applicant has turned 18. It follows that cl 117.221 is met.

24. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

25. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first 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.

    James Lambie
    Senior Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan relative

    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:

    (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.