Sibhatu (Migration) - [2020] AATA 200

Sibhatu (Migration) [2020] AATA 200 (5 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Miss Meskela Sibhatu
VISA APPLICANT:  Mr Filmon Sibhatu
CASE NUMBER:  1802164
DIBP REFERENCE(S):  OSF2017/015234
MEMBER:Ann Duffield
DATE:5 February 2020
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 05 February 2020 at 10:19am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ – age – relationship to sponsor – paternal aunt – inconsistence evidence in previous visa application – DNA test results – no parental care – applicant’s father not deceased – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cl 117.211
CASES
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 Immigration on 23 November 2017 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 2 January 2018. 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.
The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a relative of the sponsor as defined in Regulation 1.14.
The review applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
BACKGROUND
The parties provided the Tribunal with a copy of the delegate’s decision along with the application for review.
The visa applicant is a citizen of Eritrea born on 15 November 1999 (20 years old). He currently resides in Sudan.
The sponsor and review applicant is an Australian citizen born on 20 August 1979. The sponsor claims to be the paternal aunt of the visa applicant. The visa applicant’s father is her brother.
The sponsor claims that the applicant’s father and mother are missing and their whereabouts are unknown. She also claims that the applicant has been looked after by his grandmother after his mother disappeared in 2009.
The sponsor previously applied to sponsor her brother to Australia on a subclass 202 visa but it was refused in August 2010. Department records show that the sponsor’s brother is married to someone…

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.

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Details

AGLC: Sibhatu (Migration) [2020] AATA 200
Case: [2020] AATA 200
Decision Date: 5 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of a visa applicant from Eritrea and the sponsor, who claimed to be the applicant's paternal aunt and an Australian citizen. The dispute concerned the applicant's eligibility for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan relative). The sponsor asserted that the applicant's parents were missing and that the applicant had been cared for by his grandmother.

The primary legal issue before the Tribunal was whether the visa applicant met the definition of an "orphan relative" as defined by the Migration Regulations 1994, specifically Regulation 1.14. This required the Tribunal to determine if the applicant was under 18 years of age, lacked a spouse or de facto partner, was a relative of the Australian sponsor, and if both parents were deceased, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider whether the applicant continued to meet these criteria at the time of the decision, or if he had turned 18.

The Tribunal found that the applicant did not meet the criteria for an orphan relative. Crucially, the applicant was over 18 years of age at the time of the application and at the time of the decision, failing Regulation 1.14(a)(i). Furthermore, the Tribunal noted inconsistencies in the applicant's previous statements regarding his father and siblings, and a lack of documentary evidence, such as death certificates, to support the claim that both parents were deceased or of unknown whereabouts. The Tribunal affirmed the delegate's decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.BACKGROUND The parties provided the Tribunal with a copy of the delegate’s decision along with the application for review. The visa applicant is a citizen of Eritrea born on 15 November 1999 (20 years old). He currently resides in Sudan. The sponsor and review applicant is an Australian citizen born on 20 August 1979. The sponsor claims to be the paternal aunt of the visa applicant. The visa applicant’s father is her brother. The sponsor claims that the applicant’s father and mother are missing and their whereabouts are unknown. She also claims that the applicant has been looked after by his grandmother after his mother disappeared in 2009. The sponsor previously applied to sponsor her brother to Australia on a subclass 202 visa but it was refused in August 2010. Department records show that the sponsor’s brother is married to someone else other than the visa applicant’s mother and he has two half-siblings. Also in that application, the visa applicant’s father did not declare the visa applicant as a dependent, only naming two of his other children. The sponsor has provided copies of six receipts indicating that she sent the visa applicant some money in 2016. There is also a copy of the visa applicant’s baptism certificate on file. There are no birth certificates or death certificates or any other documentation or statements, apart from those mentioned, to support the parties’ claims. In an interview with the Department the visa applicant claimed that he had no siblings and had never met his father. He claims his mother just left home one day when he was around 10 years of age and never returned. He went to live with his grandmother who never told him why his mother left. The visa applicant told the Department that he only had two Aunts in Australia.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is a relative of the sponsor.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, who claims to be the visa applicant’s paternal aunt is the relevant Australian relative.

Evidence

Evidence Before The Court

In an interview with the Department the visa applicant claimed that he had no siblings and had never met his father. He claims his mother just left home one day when he was around 10 years of age and never returned. He went to live with his grandmother who never told him why his mother left. The visa applicant told the Department that he only had two Aunts in Australia.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is a relative of the sponsor.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, who claims to be the visa applicant’s paternal aunt 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. The applicant was born on 15 November 1999 and is therefore over twenty years old at the time of this decision. At the time of application on 2 January 2018 the applicant was 19 years old. Accordingly r.1.14(a)(i) was not met at the time of application and continues not 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. There is no evidence before the Tribunal that the applicant has had or currently has a de facto partner or spouse within the meaning of the Migration Act. 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.Ann DuffieldSenior MemberATTACHMENT – 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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