Zafari (Migration) - [2018] AATA 4822

Zafari (Migration) [2018] AATA 4822 (16 October 2018)
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DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ali Hussain Zafari
VISA APPLICANT:  Ms Maryam Zafari
CASE NUMBER:  1701695
HOME AFFAIRS REFERENCE(S):           2016/036843 OSF2016/036843
MEMBER:John Billings
DATE:16 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the criterion in cl.101.211(1)(c)(i)(A) of Schedule 2 to the Regulations.

Statement made on 16 October 2018 at 5:39pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – biological child – discrepancy in UNHCR Resettlement Registration Form – DNA evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2 cl 101.211
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 November 2016[1] to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
[1] The primary decision is dated 29 November though the notification letter is dated 22 November 2016.
The visa applicant, Ms Maryam Zafari (“Maryam”), applied for the visa on 10 July 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211 and cl.101.213 which require, among other things, that the visa applicant be the “child” of the sponsor as that term is defined in s.5CA of the Act.
At the time of the delegate’s decision there was no DNA evidence. There is now DNA evidence that establishes that Maryam is the child of the review applicant, the sponsor, Mr Zafari: see below.
The delegate refused to grant the visa on the basis that cl.101.211 and cl.101.213 were not met. For the following reasons the delegate was not satisfied in relation to claims that Maryam is the biological child of Mr Zafari. The delegate referred to an application for Class XB Humanitarian visas by Mr Zafari and other family members and to Mr Zafari’s UNHCR (United Nations High Commissioner for Refugees) Resettlement Registration Form. The delegate noted that it had been “consistently declared” in the Class XB visa application and UNHCR Resettlement Registration Form that Mr Zafari and his wife had two sons and two daughters. The daughters, named there, did not include Maryam. The delegate commented that the appearance of Maryam in passport and tazkera photos was of an older person. The delegate further noted that the tazkera was issued in 2016 and that “no historic evidence of identity” had been provided. Finally, the…

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 Zafari (Migration)

Details

AGLC: Zafari (Migration) [2018] AATA 4822
Case: [2018] AATA 4822
Decision Date: 16 October 2018

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101, made by Maryam, with Mr Zafari as the sponsor. The primary decision-maker had not been satisfied that Maryam was the child of Mr Zafari, and had not assessed other dependency criteria. The Administrative Appeals Tribunal (AAT), constituted by Senior Member John Billings, was required to review this decision.

The central legal issue before the Tribunal was whether Maryam was the biological child of Mr Zafari, as required by clause 101.211(1)(c)(i)(A) of the Migration Regulations 1994. The Tribunal noted the President's Direction regarding the scope of reviews, which generally restricts the AAT to considering only the matters on which an adverse decision was made by the Minister or delegate.

The Tribunal considered DNA evidence provided by Genomic Diagnostics, dated 26 September 2018. Based on this evidence, the Tribunal was satisfied that Maryam is the biological child of Mr Zafari. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that Maryam meets the criterion in clause 101.211(1)(c)(i)(A) of Schedule 2 to the Regulations. The Minister was to then consider the remaining criteria for 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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The criterion in cl.101.211 requires among other things that at the time of application, the visa applicant is a ‘dependent child’. This requirement must continue to be met at the time of decision, or if it is not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a). To be a “dependent child” of Mr Zafari Maryam must be his child: see the definitions of “dependent child” in r.1.03 and of “child” in s.5C of the Act. Clause cl.101.211(1)(c)(i)(A) requires the visa applicant to be the child (other than an adopted child) of the sponsor. The delegate was not satisfied that Maryam is the child of Mr Zafari. The delegate expressly indicated in the primary decision that she did not assess any of the other matters concerning the question of “dependency”. The Tribunal mentions now that the President’s Direction entitled Conducting Migration and Refugee Reviews includes the following, at paragraph 8.2: “As a general rule, where the Minister … or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.” In the present case the issue for the Tribunal therefore is whether Maryam is the child of Mr Zafari. On the basis of the report by Genomic Diagnostics dated 26 September 2018 the Tribunal is satisfied that Maryam is the biological child of Mr Zafari. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa, with the direction that that Maryam meets the criterion in cl.101.211(1)(c)(i)(A) of Schedule 2 to the Regulations.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the criterion in cl.101.211(1)(c)(i)(A) of Schedule 2 to the Regulations. John BillingsSenior Member

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa, with the direction that that Maryam meets the criterion in cl.101.211(1)(c)(i)(A) of Schedule 2 to the Regulations.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the criterion in cl.101.211(1)(c)(i)(A) of Schedule 2 to the Regulations. John BillingsSenior Member

Ratio Decidendi

Legal Principle Established

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