1509996 (Migration)

[2016] AATA 4092

1509996 (Migration) [2016] AATA 4092 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Apolonia Ortiz

CASE NUMBER:  1509996

DIBP REFERENCE(S):  CLF2014/50696

MEMBER:Helena Claringbold

DATE:12 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

·cl.838.212 of Schedule 2 to the Regulations; and

·cl.838.221 of Schedule 2 to the Regulations.

Statement made on 12 July 2016 at 3:31pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 July 2015 to refuse to grant Ms Apolonia Ortiz, the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Ortiz applied for the visa on 1 April 2014 on the basis that she is the aged dependent relative of Mr Nelson Ortiz, her sponsor.

3. At the time of application, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 838 visa which requires the primary applicant to be the aged dependent relative of an Australian citizen, permanent resident or an eligible New Zealand citizen. The criteria for a Subclass 838 visa are set out in Part 838 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.838.212.

4. The delegate refused to grant the visa on the basis that cl.838.212 was not met because the delegate was not satisfied Ms Ortiz is the aged dependent relative of Mr Ortiz.

5. Ms Ortiz requested review of the delegate’s decision.   She appeared before the Tribunal on 7 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ortiz. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.  Ms Ortiz was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department’s file CLF2014/50696, folios numbered 1-180, and the Tribunal file 1509996, folios numbered 1-92 and the evidence at the Tribunal hearing.

8. The issue in this case is whether Ms Ortiz is an aged dependent relative of an Australian relative, which in this case, is Mr Nelson Ortiz.

   BACKGROUND

9. Ms Ortiz claims to be the aunt of Mr Nelson Ortiz, who is her sponsor.  Ms Ortiz arrived in Australia on 27 October 1990.  She provided evidence that she has lived with her nephew Mr Nelson Ortiz, who was born on 11 August 1968, since that time. Mr Ortiz provided evidence that his father is, Mr Francisco Ortiz and Ms Ortiz is his father’s sister.

   Is the applicant an aged dependent relative of an Australian relative?

10. To be granted a Subclass 838 visa the applicant must be an ‘aged dependent relative’ of an Australian citizen, permanent resident or eligible New Zealand citizen (the Australian relative) at the time of application, and continue to be one at the time of decision: cl.838.212, cl.838.221 and cl.838.111. ‘Aged dependent relative’ is defined in r.1.03 of the Regulations.

11. Broadly speaking, a person will be an ‘aged dependent relative’ of another if: they are a ‘relative’ within the meaning of r.1.03; they do not have a spouse or de facto partner; they have been dependent on the Australian relative for a reasonable period and remain so dependent; and are old enough to be granted an aged pension under the Social Security Act 1991.

12. The word “dependent” is defined in Reg.1.05A: This regulation requires that the objective criteria for dependence be established. First, r.1.05A(1) stipulates that the person who is claiming to be dependent (the ‘first person’) must at the time at which consideration is being given, be ‘wholly or substantially’ reliant on the other person. Second, that degree of reliance is required to have been for a substantial period immediately before and continue at the time of visa application. Thirdly, the financial support being provided must be to meet the first person’s basic needs in three respects: i.e. food, shelter and clothing. Lastly, the first person’s reliance on the other person must be greater than his or her reliance on any other person or source of financial support to meet those basic needs or the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    Is the applicant an Australian relative of the sponsor?

13. Australian relative means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and is defined in r.1.03 as a spouse or de facto partner, child (including adopted child), parent, brother or sister or their step equivalents[1] grandparent, grandchild, aunt, uncle, niece or nephew or their step equivalents.

14. At the time of the visa application the applicant provided copies of birth certificates as follows:

15. For the visa applicant: Apolonia L. Ortiz born on 7 July 1933, with parents listed as follows;

    ·Father -  Liserio Ortiz and Mother -  Pascuala Lacdan.

16. For the visa applicant’s brother: Francisco L Ortiz born on 2 October 1940, parents are listed as follows:

    ·Father -  Cerio O Ortiz and Mother - Pascula D Lacdan.

17. For the sponsor:  Nelson M Ortiz born on 11 August 1968, parents are listed as follows

    ·Father:   Francisco L. Ortiz and Mother Gloria G Milan and as a result of the Department’s investigation this birth certificate was found not to be genuine.

18. Further information is that Francisco L. Ortiz registered the birth of five children as follows:

    ·Belina Milan Artes who was born on 20 February 1962

    ·Marietta Milan Ortiz who was born on 30 March 1968

    ·Milagros Milan Ortis who was born on 24 July 1971

    ·Melisa Milan Ortiz who was born on 19 October 1978

    ·Noel Milan Ortiz who was born 15 October 1981

19. Mr Nelson M Ortiz, the sponsor is not listed as a child of Francisco L. Ortiz.

20. The Department invited the applicant to comment on the finding that she had provided a fraudulent document in relation to her application.  And on there being no evidence to demonstrate her claimed relationship with Mr Ortiz, the sponsor.

21. Mr Ortiz responded and provided a copy of a birth certificate for Nelson M Artes who was born on 9 August 1969 with parents listed as Francisco Artes and Gloria Milan.

22. Mr Ortiz stated that he has used the name Nelson Ortiz with a date of birth of 11 August 1968 since primary school.  That in 1988 when he applied to come to Australia he realised that there were typographical errors in his birth records relating to his name and date of birth.

23. He further stated that he applied to have these errors corrected and was granted a police certificate and passport with his correct name and date of birth, Nelson M Ortiz as born on 11 August 1968.

24. Ms Ortiz’s migration agent advised the Department that on 7 July 2014, Ms Marissa M Ortiz, date of birth 11 August 1966, who claims to be the sister of Mr Ortiz, was asked to obtain a birth certificate for Mr Nelson Ortiz.  In addition a copy of a birth certificate was provided which listed Mr Nelson M Artes born on 9 August 1969, the father is listed as Francisco Artes and the mother is listed as Gloria Milan.  Marissa stated that she believed the errors on Mr Ortiz’s records had been rectified.  However when she approached authorities she discovered they hadn’t.

25. Ms Ortiz stated that on 18 August 2014, Mr Ortiz submitted a petition to court to amend his birth registry with an expected outcome to be 6 to 12 months from submitted date.

26. At the time of the delegate’s decision the parties had not provided any further information.

27. On 4 March 2016, Ms Ortiz via her migration agent provided the following information:

    ·Certification from the Regional Trial Court in the Philippines concerning the pending case to correct Mr Ortiz’s birth registry record.

    ·A statement that Ms Ortiz and Mr Ortiz are willing to undergo DNA testing.

    At the Tribunal Hearing

28. Ms Ortiz provided the following evidence:  she arrived in Australia on 27 October 1990 as the holder of a Tourist visa.  She planned to go back home but the birth of a child resulted in her not leaving.  She has lived with the sponsor since her arrival and has taken care of his children.

29. She said that before she came to Australia she cared for the eleven Ortiz children in the Philippines.  The children were named Magdalena, Melina, Marisa, Crispin (deceased), Nelson, Marietta (deceased at seven months), Nerlita, Milagros, Meggaelita, Melisa and Noel.  The children were born at home with the exception of, Nerlita and Noel, who were born in hospital. 

30. Mr Ortiz provided the following evidence: Before he left the Philippines to come to Australia he collected his documents.  He discovered that his birth certificate incorrectly recorded his name as Nelson M Ortiz, birth date as 9 August 1969, with parents Francisco Artes and Gloria Milan.  He began the process of having this information changed to his correct details being Nelson M Ortiz born 11 August 1968 with parents Francisco L. Ortiz and Mother Gloria G Milan.  He stated that when he applied to come to Australia in 1989, he believed that the Department had resolved the issue of his birth records.

31. He said that Ms Ortiz has lived with him since her arrival and she has acted as nanny housekeeper for the family.  He told the Tribunal that, in support of his birth and relationship with the review applicant, he has provided to the Tribunal all the evidence.

32. The parties’ agreed that errors may have taken place in recording Mr Ortiz’s birth details and Marietta’s birth details.  Marietta was born in 1969 and died seven months later and Mr Ortiz was born in 1968 and they suggested that perhaps the authorities mixed these birth records. The parties’ asked the Tribunal if they could provide the Tribunal with DNA in support of their relationship. 

33. On 7 March 2016, the Tribunal invited Ms Ortiz to provide DNA evidence of the claimed biological relationship between Ms Apolonia Ortiz and Mr Nelson Ortiz.  Ms Ortiz was asked to respond to the Tribunal by 28 March 2016, with an indication whether or not she intended to provide the DNA evidence.

34. On 27 April 2016, the Tribunal received a report from DNAQ.  This informed the Tribunal of the results of DNA testing between Ms Apolonia Ortiz and Mr Nelson Ortiz was inconclusive in determining a relationship between them.  DNAQ recommended additional testing.

35. On 16 June 2015, the Tribunal received a report from DNAQ. This informed the Tribunal of the results of DNA testing between Mr Nelson Ortiz and Ms Mendoza Milagros Ortiz and that the results suggest that they are full siblings. Further results of DNA testing between Ms Apolonia Ortiz and Mendoza Milagros Ortiz with results that suggest that it is most likely that the relationship between them is that of aunt and nephew.

    FINDINGS

36. The evidence provided at the Tribunal hearing informs that Mr Ortiz’s parents had ten children. Eight of the children were born at home and two of the children were born in hospital.  Conversely, the result of the Department’s investigation is that five children, Belina Milan Artes, Marietta Milan Ortiz (deceased seven months after birth), Milagros Milan Ortis, Melisa Milan Ortiz and Noel Milan Ortiz are registered to Mr Ortiz’s parents.   This leaves the remaining five children Magdalena, Marisa, Crispin (deceased), Nerita, Meggaelita and Nelson not identified as being registered to his parents. Further evidence is that the birth record for Marietta is incorrect and had been confused with the records for Nelson Ortiz.

37. Other evidence before the Tribunal is that Mr Ortiz’s birth certificate incorrectly recorded his name as Nelson M Ortiz, birth date as 9 August 1969, with parents Francisco Artes and Gloria Milan and that he has begun legal process to adjust his birth record to reflect what he believes is his correct birth details being Nelson M Ortiz born 11 August 1968 with parents Francisco L. Ortiz and Mother Gloria G Milan. 

38. Evidence provided by DNAQ is that although DNA results between Ms Apolonia Ortiz and Mr Nelson Ortiz were inconclusive, DNA testing between Mr Nelson Ortiz and Ms Mendoza Milagros Ortiz is that they are full siblings and that Ms Apolonia Ortiz is the aunt of Ms Mendoza Milagros Ortiz.  As a result the Tribunal accepts by association, that Ms Apolonia Ortiz and Mr Nelson Ortiz are aunt and nephew.

39. The Tribunal has considered the evidence individually and as a whole.  Ms Ortiz and Mr Ortiz claim to be related as aunt and nephew.  Various statements have been made and information provided about typographical errors on Mr Ortiz’s birth certificate and Mr Ortiz’s attempts to rectify the errors.  The Tribunal accepts that the documentary evidence about Mr Ortiz’s birth is inconclusive.  The Tribunal also accepts the parties’ oral evidence which is supported by the DNA evidence that the applicant and the sponsor are related as aunt and nephew. As a result the Tribunal is satisfied that Ms Ortiz is a relative of Mr Ortiz, who is an Australian citizen.

40. The evidence before the Tribunal is as follows:  Ms Ortiz was born on 7 July 1933; she has never been married and her parents and siblings are deceased.  Since her arrival in Australia in 1990, she has lived with Mr Ortiz and he has supported her for over twenty years for her basic needs.

41. As a result the Tribunal is satisfied that Ms Ortiz is the aged dependent relative of Mr Ortiz, who in this case is the Australian relative for the purposes of cl.838.212.

42. For the reasons set out above, the Tribunal is satisfied that the applicant is the aged dependent relative of an Australian relative at the time of application and at the time of decision for the purposes of cl.838.212 and cl.838.221.

43. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 838 visa.

    DECISION

44. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 838 (Aged Dependent Relative) visa:

    · cl.838.212 of Schedule 2 to the Regulations; and

    · cl.838.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member