Yigzaw (Migration) - [2018] AATA 3006

Yigzaw (Migration) [2018] AATA 3006 (12 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Gedamu Mersha Yigzaw
VISA APPLICANTS:  Miss Adina Mersha Yigzaw
Miss Mulunesh Mersha Yigzaw
Miss Kassech Mersha Yigzaw
CASE NUMBER:  1606362
DIBP REFERENCE(S):  2014044711 / 2014044712 / 2014044713
MEMBER:Kira Raif
DATE:12 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 12 July 2018 at 8:12am
CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative – Orphan relatives of Australian relative – Date of births – Age difference – Priests’ evidence – No baptism records – Recollection of precise dates by priest – Birth records by Social Courts – Self-reported dates on passport – Reliability of evidence – Decision under review affirmed
LEGISLATION
Migration Act (Cth) ss 65, 359AA
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2 cls 117.111, 117.211, 117.221
CASES
EC v MIMIA [2004] FCA 978
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 1 March 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants are nationals of Ethiopia. They applied for the visas on 3 December 2014. The delegate refused to grant the visas because the applicants did not meet cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives of their Australian relative. The sponsor (“the review applicant’) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 14 June and 28 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the family priest. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the time the application was made, 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). 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.…

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: Yigzaw (Migration) [2018] AATA 3006
Case: [2018] AATA 3006
Decision Date: 12 July 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), brought by the applicant, Yigzaw, on behalf of a child. The core of the dispute concerned whether the child met the eligibility criteria for the visa, particularly regarding their relationship to an Australian relative and their age. The Tribunal was tasked with reviewing the initial decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant had discharged the onus of proving that the child met the specific criteria for a Subclass 117 visa. This involved assessing the reliability and sufficiency of the evidence presented to establish the child's orphan status and their age relative to the sponsoring Australian citizen or permanent resident. The Tribunal had to determine if the evidence, including priest's testimony, birth records from Social Courts, and self-reported dates on a passport, was adequate to satisfy the legislative requirements.

In its reasoning, the Tribunal found that the evidence presented was insufficient to establish that the child met the criteria for the visa. The Tribunal noted the absence of baptism records and questioned the reliability of a priest's recollection of precise dates. While birth records from Social Courts and self-reported dates on a passport were considered, they were ultimately deemed not to satisfy the evidentiary burden. Consequently, the Tribunal affirmed the decision not to grant the Child (Migrant) (Class AH) visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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