Turay (Migration) - [2021] AATA 3747

Turay (Migration) [2021] AATA 3747 (28 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Alpha Ibrahim Turay
VISA APPLICANTS:  Master Favour Osakpamwen Osagie
Master Divinewill Osagie
CASE NUMBER:  1826381
HOME AFFAIRS REFERENCE(S):          CLF2018/352380 F2015/046095
MEMBER:M. Edgoose
DATE:28 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 28 September 2021 at 10:25am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – no evidence that visa applicants’ mother dead, incapacitated or of unknown whereabouts – no response to tribunal’s invitation to provide information about current status and circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cls 117.211(a), 117.221
CASES
EC v MIMIA [2004] FCA 978
Hasran v MIAC [2010] FCAFC 40
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 24 July 2018 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 4 May 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.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 of Schedule 2 to the Regulations.
On 10 September 2021 the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting them to provide information about the current status and circumstances of the review and visa applicants. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 27 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010]…

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: Turay (Migration) [2021] AATA 3747
Case: [2021] AATA 3747
Decision Date: 28 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), in relation to an Australian relative. The primary dispute concerned whether the visa applicant met the definition of an "orphan relative" as required by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant satisfied the criteria for an orphan relative, specifically whether they could not be cared for by either parent because each parent was dead, permanently incapacitated, or of unknown whereabouts. This involved assessing the status of both the applicant's mother and father.

The Tribunal accepted that the visa applicant's father was deceased. However, it was not satisfied that the applicant's mother was dead, permanently incapacitated, or of unknown whereabouts, particularly given evidence that she had been paying the applicant's school fees. The Tribunal noted that no further submissions or evidence had been provided by the review applicant to address these concerns, despite multiple attempts by the Tribunal to contact them. Consequently, the Tribunal found that the requirement under regulation 1.14(b) of the Migration Regulations 1994 was not met.

As the criteria for the Subclass 117 visa were not met, the Tribunal affirmed the decision not to grant the 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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEIs 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, the uncle Mr Alpha Ibrahim Turay, 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 does not continue to be met at the time of decision.No parental care – reg 1.14(b) 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. According to the delegate’s decision dated 23 July 2018 the visa applicant’s mother, Esther Osagie, was listed as their guardian and was paying the school fees. The delegate was not satisfied the visa applicant’s mother was deceased given that she had continued to pay the school fees. The delegate had serious concerns about the credibility of the visa applicant’s and sponsors (review applicant) claims that the whereabouts of the mother were unknown. The Tribunal accepts based on the consistent information before it that the visa applicant’s father is deceased and that he died on 11 June 2013. However, based on the information contained in the delegate’s decision the Tribunal is not satisfied that the visa applicant’s mother is dead, permanently incapacitated or of unknown whereabouts. The Tribunal further notes that since applying to this Tribunal to have the delegate’s decision reviewed the review applicant has not made any further submissions to the Tribunal in relation to this matter although being contact by the Tribunal on several occasions. Based on the lack of evidence the Tribunal is not satisfied that the visa applicant’s meet the requirements of reg 1.14(b).

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 decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.M. EdgooseMemberATTACHMENT – 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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