Thal Bay (Migration) - [2022] AATA 5238

Thal Bay (Migration) [2022] AATA 5238 (16 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Rabeca Thal Bay
VISA APPLICANTS:  Mr Monday Mordit Mabaon Mayom
Mr Malok Mordit Mabaon Mayom
Mr Poryal Mordit Mabaon Mayom
Mr Kedit Mordit Mabaon Mayom
Mr Mabaon Mordit Dhelbai Mayom
Master Saba Mordit Mabaon Mayom
REPRESENTATIVE:  Mr Emete Joesika (MARN: 0100301)
CASE NUMBER:  1718051
HOME AFFAIRS REFERENCE(S):          OSF2015/075481
MEMBER:David Crawshay
DATE:16 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 visa applicants meet 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 16 December 2022 at 3:42pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – age – no spouse or de facto partner – relative – nephew – no parental care – best interests – 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
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 and Border Protection on 29 June 2017 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 18 August 2015. 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 (Cth) (the Regulations). Relevantly to this case, they include cl.117.211, which requires a visa applicant to be an orphan relative of an Australian relative of that visa applicant.
The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations. The delegate found that the visa applicants were not orphan relatives of the review applicant.
The review applicant appeared before the Tribunal on 7 October 2021 to give evidence and present arguments (initial hearing). The Tribunal also received oral evidence from the first-named visa applicant and from Ms Monika Yar Moshol Mothondok, who is the paternal grandmother of the parties. It became necessary to convene a second hearing (resumed hearing) on 22 March 2022 in order to, among other things, interview Ms Rebecca Wour, who was not able to be interviewed at the initial hearing, The Tribunal also interviewed Mr Rial Yak, who is the son of the review applicant. The Tribunal hearings were conducted with the assistance of interpreters in the Dinka and English…

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 Thal Bay (Migration)

Details

AGLC: Thal Bay (Migration) [2022] AATA 5238
Case: [2022] AATA 5238
Decision Date: 16 December 2022

CaseChat Overview and Summary

This matter concerned an application for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), before the Tribunal. The dispute centred on whether the visa applicants qualified as orphan relatives of an Australian relative, as defined by the Migration Regulations 1994. The Tribunal, constituted by Member David Crawshay, was required to determine if the applicants met the criteria for this visa subclass.

The primary legal issues before the Tribunal were whether the visa applicants were, and continued to be, orphan relatives of an Australian relative. This involved assessing whether they met the requirements of clause 117.211 and clause 117.221 of the Migration Regulations. Specifically, the Tribunal had to consider the applicants' age, whether they had a spouse or de facto partner, their relationship to the Australian relative, the circumstances of their parents' inability to provide care, and whether granting the visa would be in the applicants' best interests.

The Tribunal's reasoning focused on the definition of an "orphan relative" and an "Australian relative" within the Regulations. It accepted evidence, including nationality certificates and death certificates, to establish that the visa applicants were under 18, had no spouse or de facto partner, and that their parents had died. The Tribunal also considered that the Australian relative was the sister of the visa applicants, thus satisfying the definition of a "relative." Crucially, the Tribunal found that the death certificates, despite some minor irregularities, were genuine and established the deaths of the applicants' parents. The Tribunal concluded that the visa applicants met the criteria under clause 117.211 and clause 117.221 of the Regulations.

Consequently, the Tribunal remitted the visa applications for reconsideration. The direction was that the visa applicants met the criteria specified in cl.117.211 and cl.117.221 of Schedule 2 to the Regulations, allowing for further assessment of any remaining criteria for the Subclass 117 (Orphan Relative) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 were and continue to be orphan relatives of the review applicant pursuant to the Migration Regulations.Is the visa applicant an orphan relative of an Australian relative? Clause 117.211 requires that at the time of application a visa applicant is an orphan relative of an Australian relative (cl.117.211(a)) or is not an orphan relative only because that visa applicant has been adopted by an Australian relative (cl.117.211(b)). A 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 a 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 review applicant, as the sister of the visa applicants, is the relevant Australian relative. For the reasons below, the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is not met and does not continue to be met at the time of decision.Age – r.1.14(a)(i) Regulation 1.14(a)(i) requires that an individual visa applicant has not turned 18. The Tribunal has seen copies of the visa applicants’ nationality certificates issued by the Minister of Interior in June 2014. These show that the visa applicants were all below the age of 18 at the time of application (the first-named visa applicant was claimed to be two weeks shy of his 18th birthday). Although the certificates were issued a number of years after the visa applicants’ claimed births (17 years in the case of the first-named visa applicant), in the absence of contrary information the Tribunal gives these certificates weight. It finds that the visa applicants were all under the age of 18 at the time of application. Accordingly, r.1.14(a)(i) was met at the time of application and continues 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 an individual visa applicant does not have a spouse or de facto partner. There is no evidence to show that any of the visa applicants has ever had a spouse or de facto partner. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision in respect of all visa applicants.Relative – r.1.14(a)(iii)

Decision

Reasons for decision

In relation to the claimed deaths of Prisicalla and Adol, the Tribunal has considered the death certificates submitted. Both certificates purport to be from the Rumbek State Hospital. The first of these, in respect of Prisicalla, puts the date of death as 24 December 2012 and lists the cause of death as “Diarrhea, Vomitting & Anaemia”. It is dated 23 December 2012. The second of these, in respect of Adol, puts the date of death as 2 January 2013 and lists the cause of death as “Diarrhea, Vomitting, [?], Dehydration, aneamia [sic] & Hepers [sic] Zoster”. The certificate is undated. Both of the death certificate were signed by Dr Elijah Makender Makec. The Tribunal understand from open-source materials that Dr Makender Makec is a doctor who was practising at Billing Alpha Civil Hospital at the time of the claimed deaths.[2] Billing is a town that is located 17 kilometres from Rumbek. Moreover, there is evidence from a private news website (Sosanews.com) that Dr Makender Makec was practising at Rumbek Hospital in May 2010.[3][2] >The Tribunal has considered these documents and finds that Dr Makender Makec was a doctor at Rumbek Hospital at the time of the claimed deaths. It accepts that he would have been in a position to be able to sign the death certificates. Although there are some irregularities such as the second death certificate not being signed, it accepts that the documents are genuine. It accords significant weight to this evidence and finds that it displaces any concerns based on the inconsistent dates of death given by the parties. Having made the above findings, the Tribunal accepts that Prisicalla and Adol died as claimed in December 2012 and January 2013 respectively.Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.Best interests – r.1.14(c)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 applicants. As there is no clear evidence that the grant of the visa would not be in the best interests of the visa applicants, the Tribunal finds that there is no compelling reason. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.Given the findings above, cl.117.211(a) is met in respect of all visa applicants. Clause 117.211(a) is an alternative requirement under cl.117.211, and that subclause is met.The Tribunal finds that cl.117.221(a) is met in respect of sixth-named visa applicant at the time of this decision. As the first-named, second-named, third-named, fourth-named and fifth-named visa applicants have turned 18 since the time of application, the Tribunal finds that cl.117.221(b) is met in respect of them. Clauses 117.221(a) and (b) are alternative requirements under cl.117.221, meaning that that subclause is met.Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISIONThe Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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.David CrawshayMemberATTACHMENT – 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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