1603737 (Migration)

[2019] AATA 2393

1603737 (Migration) [2019] AATA 2393 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603737

MEMBER:Justine Clarke

DATE:12 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the first and second-named visa applicants’ applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first-named visa applicant meets 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.

The Tribunal affirms the decision not to grant the third-named visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 12 February 2019 at 10:27am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of Australian relative – no evidence parents alive – age requirement – under 18 years at time of application – DNA Test – third-named applicant not sponsor’s sister – credibility issues – decision of first and second-named applicant under review remitted – decision of third-named applicant under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 375A
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schdeule 2, cls 117.111, 117.211, 117.221

CASES
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is a combined application for review of two decisions made by a delegate of the Minister for Immigration on 22 February 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. On 9 April 2014, the visa applicants ([Ms A], [Ms B] and [Ms C]) applied for the visas. 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.

3. Ms [D], the review applicant and sponsor, is a [Australian] citizen born in Sudan. The Department’s file contains a copy of the bio-pages of [Ms D]’s Australian passport and, on the basis of this evidence, the Tribunal is satisfied that she has been granted Australian citizenship.

4. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include clauses 117.211 and 117.221.

5. Clause 117.211 requires that, at the time of application, the visa applicant is the orphan relative of an Australian relative.

6. ‘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 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): r.1.03. [Ms D], is the relevant Australian relative.

7. To be an orphan relative for the purposes of the definition in r.1.14, the person must not have turned 18 years of age (paragraph (a)(i)); must not have a spouse or de facto partner (paragraph (a)(ii)); must be a ‘relative’ of that other person (paragraph (a)(iii)). Further, it must also be that the person cannot be cared for by either parent because each parent is dead, permanently incapacitated or of unknown whereabouts (paragraph (b)). Finally, there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant (paragraph (c)).

8. Clause 117.221 requires that, at the time of decision, the visa applicant continues to satisfy cl.117.211 (paragraph (a)) or does not continue to satisfy that criterion only because the applicant has turned 18 years of age (paragraph (b)).

9. [Ms D] provided the Tribunal with a copy of the two decision records: one where [Ms A] was the primary applicant and [Ms B] was the secondary applicant and the other where [Ms C] was the primary applicant. In each case, the same delegate was not satisfied that, at the time of application and at the time of decision, [Ms A] and [Ms C] were orphan relatives (as defined) of [Ms D].

10. With regard to [Ms A]’s claims, the delegate indicated that she was not satisfied that:

    ·at the time of application, [Ms A] had not turned 18 years (r.1.14(a)(i));

    ·[Ms A] was [Ms D]’s sister (r.1.14(a)(iii)); or

    ·[Ms A’] parents were deceased (r.1.14(b)).

11. Accordingly, the delegate was not satisfied that [Ms A] met cl.117.211 and cl.117.221 of Schedule 2 to the Regulations. As the delegate found that [Ms A] did not meet the primary criteria, she found that [Ms B] did not meet the secondary criteria.

12. With regard to [Ms C]’s claims, the delegate was satisfied that, at the time of application, [Ms C] had not turned 18 years of age (r.1.14(a)(i)). However, the delegate indicated that she was not satisfied that:  

    ·[Ms C] was [Ms D]’s sister (r.1.14(a)(iii)); or

    ·[Ms C]’s parents were deceased (r.1.14(b)).

13. Accordingly, the delegate was not satisfied that [Ms C] met cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.

14. On 18 March 2016, [Ms D] applied to Tribunal for review of the two primary decisions. She was represented in relation to the review by her registered migration agent.

15. On 5 June 2018, [Ms D] appeared before the Tribunal to give evidence and present arguments. The Tribunal also received evidence from Mr [Mr E] ([Ms D]’s son) in person and the visa applicants [Ms A] and [Ms C]—both by telephone from Uganda. The Tribunal hearing was conducted with the assistance of an interpreter in the Nuer and English languages. The representative also attended the hearing. The Tribunal notes that [Ms D] was pregnant when she attended the hearing.

16. At the hearing, when asked, [Ms D], [Ms A] and [Ms C] expressed the view that they would be willing to provide DNA evidence in order to support their claimed biological relationship.

17. On 9 July 2018, the Tribunal wrote to [Ms D], by way of her registered migration agent, offering her the opportunity to provide DNA evidence and emphasising that such testing is not required by law and that there was no obligation to undertake the testing if she, [Ms A] or [Ms C] did not wish to do so.

18. On 10 and 12 July 2018, [Ms D]’s representative replied with [Ms D]’s signed acceptance of the invitation to provide DNA evidence.

19. Subsequently, the Tribunal liaised with the Department in respect of the request for DNA testing.

20. [In] September 2018, the company who undertook the DNA testing sent its report to the Tribunal. The results in this report, as well as another report, dated [in] September 2018, and the letters the Tribunal sent to [Ms D] as well as the relevant responses are outlined later in this decision.

21. For the following reasons, the Tribunal has concluded that:

    ·in respect of [Ms A] and [Ms B], the matters should be remitted for reconsideration; and

    ·in respect of [Ms C], the decision under review should be affirmed.

    CLAIMS AND EVIDENCE

22. The issues in this case are whether, at the time the visa applications were made on 9 April 2014, [Ms A] and [Ms C] were orphan relatives of an Australian relative (cl.117.211(a)) and whether, at the time of this decision, each of them continues to satisfy the criterion in cl.117.211 or does not continue to satisfy that criterion only because they have turned 18 years of age (cl.117.221).

23. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as oral evidence given at the hearing.

    The non-disclosure certificate

24. The Department’s file contains a certificate, dated 26 February 2016, said to be made pursuant to s.375A of the Act. The Department sought, by way of issuing this certificate, to protect the disclosure of specified folios on its file on the basis that the disclosure of the information would be ‘contrary to the public interest’ because those folios contain ‘Country Information profile and Official documents for South Sudan’.

25. The Tribunal does not consider that the certificate was validly made as the delegate has not provided sufficient reasons for non-disclosure on public interest grounds. The Tribunal considers the certificate contains mere descriptions rather than public interest immunity reasons. The Tribunal is mindful of the case of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. In that case, the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’.

26. The Tribunal notes that the review applicant has not been informed of the existence of the certificate previously. As the Tribunal considers that the purported non-disclosure certificate is invalid, it was not discussed at the hearing and the Tribunal did not give the review applicant a copy of the certificate.

27. The Tribunal has reviewed the information sought to be protected from disclosure. The folios contain a report with information about South Sudan and official documents (hereafter referred to as the country information report) said to be current as at September 2015. At the time of making this decision, the information in the report is more than three years old.

28. As will be discussed, the Tribunal considers that some of the information in the report is relevant to this case because it assists [Ms A]’s claim that, at the time of application, she had not turned 18 years of age.

    CONSIDERATION OF [MS A]’S CLAIM

29. For the reasons below, the Tribunal finds that:

    ·at the time of application, [Ms A] was an orphan relative of an Australian relative and thus met cl.117.211(a); and

    ·at the time of this decision, [Ms A] does not continue to satisfy the criterion in cl.117.211 only because she has turned 18. She thus meets cl.117.221(b).

    Age – r.1.14(a)(i)

30. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

31. The delegate found that, at the time of application, [Ms A] was more than 18 years of age. Accordingly, the delegate was not satisfied that [Ms A] met the age requirement in r.1.14(a)(i).

32. The delegate noted that, in a previous application to the Department, [Ms A] had given her date of birth as [Date 1] but that in this visa application she had given her date of birth as [Date 2]. The Department afforded [Ms A] with an opportunity to comment on or respond to this discrepancy. The primary decision explains:

    In her response she claimed that the date of birth in her previous application was incorrect. This was because she got assistance from a friend who made the error. She also claims that the sponsor did not notice the mistake as she did not read English very well. She also claims that exact dates of birth and English documentation are not very familiar to people in Sudan. She also claims that her photo shows she is not old enough to have been born in [a certain year]. The department in trying to assess her true age using documents and her passport photos requested the primary applicant to provide current passport photos of her and her dependent. The email was dated 01/09/2015. The primary applicant claims she has email records indicating she emailed the passport photos to her migration agent and that it was his responsibility to forward the documents to the department. It was also noted that … [[Ms B]’s] date of birth in the previous application was listed as [Date 3], which is [in] consistent with the [date] provided in this application. The primary applicant also blames the friend who filled the form on the error.

33. The delegate did not find the explanation, that [Ms A]’s friend had made an error, to be plausible. Given that the documents that had been submitted to evidence [Ms A]’s age could be obtained from the testament of the individual only, the delegate placed weight on the previous application and found that [Ms A] was born on [Date 1]—not [Date 2]. This would have made her more than 18 years of age at the time of application on 9 April 2014.

34. At the hearing, [Ms A] told the Tribunal that her date of birth was [Date 2]. [Ms D] told the Tribunal that [Ms A]’s date of birth was [Date 4]. The Tribunal does not consider the fact that [Ms A] and [Ms D] gave different months [to] be a reason for affirming the Department’s decision to refuse [Ms A] and [Ms B] the visas. This is because the Tribunal considers that [Ms A] is the person who is best placed to give accurate evidence about her date of birth and the Tribunal accepts the evidence that was submitted that [Ms D] may have made some inadvertent errors in her oral evidence due to being heavily pregnant and because of other psychological conditions she was experiencing. This issue is discussed later in this decision.

35. [Ms A], [Ms D] and [Mr E] gave oral evidence that, as at the date of the hearing, [Ms A] was [a certain] age. [Mr E] told the Tribunal that he was unaware of [Ms A]’s date of birth.

36. The written submissions of 28 May 2018 stated:

    Given the decades of catastrophic conflicts and lack of development in Sudan, there were no hospital records of birth at the time the visa applicants were born which can corroborate any of their claimed ages. For this reason, the South Sudanese authorities normally issue age assessment certificates to confirm the ages of South Sudanese who are affected by this in order to corroborate their claimed ages. In addition to the applicants’ age assessment certificates and national identity cards, the photographs of the applicants have been provided to the Tribunal as a further tool to determine their ages at the time of this application was lodged in April 2014 for visa purposes. In this case, based on most recent photographs, it is apparent that all the visa applicants were under 18 at the time of the visa application. Based on [Ms A]’s current photograph, it is plausible that she was under 18 at the time of the visa application. Therefore, it is submitted that none of the visa applicants had turned 18 when the visa application was lodged and therefore meet the requirements of r.1.14(a)(i).

    Inconsistency in [Ms A]’s age in her previous humanitarian application and current application

    The review applicant stated that their Sudanese family friend Mr [F] who assisted [Ms A] with Sudanese identity card for her humanitarian visa application had incorrectly raised her age only for the purpose of obtaining an identity card and passport to support her application. The reason being that it was extremely difficult at that time for a person under 23 years of age to obtain a Sudanese identity card and passport to travel overseas. A statement from Mr [F] confirming the review applicant’s claim has been provided to the Tribunal. 

37. In his signed statement, Mr [F] declared:

    … I assisted [Ms A] with a birth certificate of North Sudan to enable her to obtain the Khartoum national identity card to support her humanitarian migration application.

    … [Ms A] was underage ([age]) at the time of her application for a national identity card of North Sudan and because of her age, she would not be eligible to receive an identity card of North Sudan including a passport which might be detrimental to her application. Because of this, I raised [Ms A]’s age on the birth certificate which I obtained for her so that she could be allowed to obtain an identity card to support her humanitarian application.  

38. The Tribunal notes that Mr [F] provided his mobile telephone number but the Tribunal did not consider it necessary to call him during the hearing to test his evidence. Rather, the Tribunal asked [Ms A] about the claim. She gave oral evidence that, in Sudan, if a person wants identification but the person is a minor, they usually raise their age so that they can obtain the identification. She gave oral evidence that this had happened in her case.

39. The Tribunal accepts that there are difficulties in assessing Cicila’s age.

40. The Tribunal notes that the Department’s file contains copies of the following documents which evidence [Ms A]’s date of birth as [Date 1]:

    ·a stamped and signed Age Assessment Certificate (complete with a photograph) issued by the Ministry of Health the Republic of South Sudan [in] January 2014;

    ·both sides of [Ms A]’s Nationality Certificate (a card complete with a photograph) issued by the Republic of South Sudan on [in] January 2014; and

    ·the bio-pages of [Ms A]’s passport issued by the Republic of South Sudan on [in] January 2014.

41. The Tribunal notes that an internal note on the Department’s file was critical of this evidence because all the documents were issued in January 2014, which was a couple of months prior to the lodgement of the visa application on 9 April 2014.

42. Further, the country information report outlines concerns with the accuracy of the information presented in the age assessment certificates and national identity cards and described these documents as unreliable evidence. The country information report recommended other forms of documents be requested to support a person’s claim to age. One of the documents recommended to support a person’s claim to age is ‘refugee registration documents’.

43. In this review application, [Ms D] submitted:

    ·a copy of a signed, ‘to whom it may concern’ letter from a named person, dated [in] April 2016, from the Office of the Prime Minister of Uganda, on the letterhead of that office, in respect of the grant to [Ms A] of prima facie refugee status and including the year of her birth [and] stating that the grant was accompanied by family members [Ms B] (described as her daughter) and [Ms C] (described as her sister) and also stating each of their years of birth—the document was said to be valid for one year from the date of issue and may be renewed; and

    ·a copy of both sides of [Ms A]’s Refugee Identity Card issued by the Republic of Uganda, including her date of birth as being [Date 1], which is valid until a date in April 2021.

44. The Tribunal has had the benefit of interviewing [Ms D] and [Ms A] at the hearing. On the basis of the oral evidence they both gave, which is corroborated by the above-mentioned letter and [Ms A]’s Refugee Identity Card, the Tribunal is satisfied that [Ms A] had not turned 18 at the time the visa application was lodged.

45. Accordingly, r.1.14(a)(i) was met at the time of application but does not continue to be met at the time of decision because [Ms A] has since turned 18.

    Spouse or de facto partner – r.1.14(a)(ii)

46. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.

47. The written submissions of 28 May 2018 submitted that ‘none of the visa applicants has ever married or ever been in a de facto relationship’. [Ms D] gave consistent oral evidence at the hearing. The written submissions of 11 December 2018 submitted that ‘[Ms A] has never been married and has never been in a de facto relationship which is strictly prohibited in Sudanese culture’.

48. The Tribunal notes that at the Tribunal hearing, [Ms D] gave oral evidence that [Ms A] was not married or in a de facto relationship. [Ms A] also told the Tribunal that she was not married or in a de facto relationship. [Mr E] also gave oral evidence that [Ms A] was not married or in a de facto relationship.

    Evidence about [Ms B]’s father

49. The Department’s file contains a signed statement said to be made by [Ms A] on 5 March 2015 which states:

    I am writing this statement in relation to my visa application to Australia. This includes my daughter, [Ms B], born on [Date 4].

    The name of the father of my daughter is [Mr G]. We were both very young and met at school in [Town 1].

    Soon after the birth of my daughter we went to Uganda with my sister [Ms C] who is also an applicant for an Australian visa, with my nephew [Mr E] who is already in Australia.

    [Mr G’s] family and our family do not keep in contact due to some family problems in the past when [Mr G]’s family members killed my uncle due to some misunderstandings linked to many problems running between the two [families]. The two families stopped all communication many years ago.

    I lost communication with [Mr G] since 2011 and I never saw him. I was told that he enlisted in the South Sudanese Army (Nuer).

    In December 2014 I heard there was a fight which broke in [Town 1] and believe that he could even be dead but I am not sure about this fact.

1. At the hearing, [Ms D] gave detailed evidence about the circumstances leading to [Ms A]’s pregnancy and subsequent birth of her daughter [Ms B]. For example, she told the Tribunal that [Ms A] had been raped by a young man who had used to live in the same area and that she and her family do not know his whereabouts as he left and they were unable to locate him.

2. The Tribunal observed an inconsistency between [Ms D]’s oral evidence given at the hearing about an important aspect of the identity of [Ms B]’s father and that given by [Ms A] in her signed statement of 5 March 2015 which is on the Department’s file.

   The s.359A letter of 28 November 2018

3. On 28 November 2018, the Tribunal wrote to [Ms D] about the inconsistency pursuant to s.359A of the Act. The relevant part of this section of the letter is extracted below. 

   The particulars of the information are:

   ·     At the hearing, you gave oral evidence about the circumstances leading to [Ms A]’s pregnancy and subsequent birth of her daughter. You told the Tribunal that [Ms A] had been raped by a young man who had lived in the area and that he was a Dinka and that you and your family were Nuer. You noted that people from each group cannot marry. However, in her statement made on 5 March 2015 and submitted to the Department, [Ms A] gave details of the man that she claims is the father of her child, including that she was told that he had enlisted in ‘the South Sudanese Army (Nuer)’. This evidence suggests that [Ms B]’s father is Nuer—not Dinka.

   This information is relevant to the review because it may cause the Tribunal to impugn your and [Ms A]’s general credibility, such that the Tribunal does not accept the claim that [Ms A] is an orphan relative of you. For example, if the Tribunal relies on this information in making its decision, it may conclude that the requirement in r.1.14(a)(ii)—that the visa applicant does not have a spouse or de facto partner—is not met as you and [Ms A] have provided inconsistent evidence as to an important aspect of the identity of [Ms B]’s father. Accordingly, the Tribunal may affirm the decision under review with respect to [Ms A] on that basis.

4. The letter requested a response by 12 December 2018 or for any request for an extension of time in which to respond to be filed by that date. 

5. On 12 December 2018, [Ms D]’s representative responded by filing written submissions dated 11 December 2018 as well as other documents, including [Ms D]’s statutory declaration made on 11 December 2018 and a further report from [Ms D]’s clinical psychologist dated 6 December 2018.

   The review applicant’s response

6. In her statutory declaration made on 11 December 2018, [Ms D] declared that, in 2010, [Ms A] had told her that [Ms B]’s father was Nuer and that she believes that he was Nuer. She also declared that she thought that she had given oral evidence at the Tribunal hearing that [Ms B]’s father was Nuer and that she could not recall having stated that the father was Dinka and that she had not intended to mislead the Tribunal. She explained that, when she had attended the hearing, she had been heavily pregnant and had also been suffering from depression, anxiety, sleeping disturbances and short-term memory loss which she believed may have affected her such that the error was made.

7. [Ms D]’s clinical psychologist made the following comments in her further report dated 6 December 2018:

   … it is normal for people who have endured severe trauma like [Ms D] and also for pregnant women, such as [Ms D] over 2018, to experience problems with their memory and memory recall. That was a normal symptom of her psychiatric condition. Also depressed, anxious and pregnant mothers suffer from confusion, forgetfulness and short term memory loss. … The writer did not believe [Ms D] would have intentionally tried to mislead the Tribunal. She simply had memory impairment, which is a normal symptom of her diagnoses.

   The Tribunal’s conclusion on the inconsistency

8. The Tribunal acknowledges the validity of the written submission that [Ms A], rather than [Ms D], is the person in the better position to provide correct information about [Ms B]’s father.

9. The Tribunal finds that the explanations provided about the inconsistency in the evidence about [Ms B]’s father are plausible and, accordingly, the Tribunal accepts [Ms D]’s explanation for the inconsistency. The inconsistency in the evidence is not a reason for the Tribunal to affirm the delegate’s decision with respect to [Ms A] and [Ms B] that is under review.

10. On the basis of the evidence before it, the Tribunal is satisfied that, at both the time of application on 9 April 2014 and at the time of this decision, [Ms A] did not and does not have a spouse or a 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.

    Relative – r.1.14(a)(iii)

11. Regulation 1.14(a)(iii) requires the visa applicant to be a ‘relative’ of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. In a case such as the present case, a ‘relative’ may be a ‘close relative’ and a sister is an example of a ‘close relative’.

12. [Ms A] claims that [Ms D] is her older sister.

13. As noted above, the delegate was not satisfied that [Ms A] was [Ms D]’s sister. The relevant primary decision explains that the delegate was concerned that, in her own migration file, [Ms D] had not declared that [Ms A] was her sister. The Department afforded [Ms A] an opportunity to comment on or respond to this information and she responded by stating that [Ms D]’s ex-husband had completed [Ms D]’s migration application and that [Ms D] had not been involved in the process. She said that [Ms D]’s ex-husband did not include [Ms A], [Ms C] or [Ms D]’s son [Mr E] in [Ms D]’s visa application and that [Ms D] had been distressed to discover that these family members were missing from the application. [Ms A] further claimed that [Ms D]’s ex-husband told her to agree with everything at the Departmental interview and that [Ms D] had done so because she was scared of her ex-husband.  

14. The delegate acknowledged that the claimed facts may have occurred but stated:

    the sponsor was personally interviewed by the department and she did not mention any of her siblings or corrections to her family structure.

    In this application, minimal evidence has been provided to substantiate the claimed relationship. On this basis, I am unable to accept the applicants are relatives of the sponsor.

15. The written submissions of 28 May 2018 stated:

    The review applicant’s ex-partner handled their humanitarian migration application. The review applicant’s ability to speak, read or write English at that time was very limited and she had no knowledge of the information provided in the application. Also, she does not understand anything about the immigration process and procedures. Her ex-partner did not want to bring the review applicant’s siblings to Australia as he did not want to take additional financial responsibility for them. So, he wrongly thought that declaring or putting the applicant’s details in the form meant that he was sponsoring them as well. For this reason, he failed to provide their details in their humanitarian visa application. With no knowledge and understanding of the Australian immigration process and procedures, the review applicant had no control over the actions of her ex-partner who did everything about their own humanitarian migration application by himself. Even though the review applicant’s siblings and her son [Mr E] were not declared in their humanitarian visa application, the Department still allowed the review applicant’s son [Mr E] to migrate to Australia under the child migration visa program to rejoin the review applicant in Australia.

16. The Tribunal asked [Ms D] why she had not listed [Ms A] as her sister in her visa application and she said that it was because her ex-husband had made the application for the visa and he was controlling and did not want to list her family members—including her son [Mr E], who was not the son of this ex-husband—because he did not want them to be a burden for him. She told the Tribunal that she had asked her ex-husband to include her family members in the application but that he refused. [Ms D] gave oral evidence that the reason she did not say anything about her sisters in her interview with the Department was because she viewed the migration case as being her ex-husband’s case; her ex-husband was present in the room when she was interviewed and she considered that she could only answer the questions that were directed to her. Having had the opportunity to hear [Ms D]’s oral evidence in person, the Tribunal accepts her evidence in this regard. 

17. Similarly, [Ms A] told the Tribunal that, with respect to the first visa application, [Ms D]’s then husband had completed the form and that she did not know anything about it at all. She said that [Ms D] had completed the second application.

18. Both [Ms D] and [Ms A] gave consistent oral evidence at the Tribunal hearing that they are sisters. [Mr E] also gave oral evidence that [Ms D] and [Ms A] are sisters.

19. Notwithstanding the evidence before the Tribunal, because [Ms D], [Ms A] and [Ms C] informed the Tribunal that they were willing to undertake DNA testing, the Tribunal invited them to do so.

20. On 17 September 2018, the Tribunal wrote to [Ms D] and attached a copy of the report of the DNA results. The letter noted that the results indicated that the likelihood of [Ms D] and [Ms A] being full siblings is practically proven. The category of practically proven is the highest possible category to establish family relationships. The Tribunal gives great weight to this evidence.

21. On the basis of the evidence before the Tribunal, particularly the DNA evidence, the Tribunal is satisfied that [Ms D] and [Ms A] are sisters. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

22. 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.

23. As noted above, the delegate was not satisfied that the people that [Ms A] claims to be her parents are deceased, citing a lack of credible evidence. The delegate stated:

    The sponsor claims that her parents are both deceased. Death certificates have been provided as proof of the parents’ deaths. According to the death certificates, the primary applicant’s father died on [Date 5] and her mother died on[Date 6]. The reasons for their deaths are both listed as unknown. This contradicts with information held in the primary applicant’s previous application where she claims her parents died in [during] the war. When asked to comment on this information, the primary applicant again claims that the first date that was given was a mistake by the friend who helped with her application. She claims that when the sponsor came to Africa in 2013 she obtained documents from [Hospital] stating the correct date of death of her parents. Keeping in mind that these documents were issued in 2014 and the blame on a friend making a mistake in the dates I do not find this explanation plausible.

    Whilst the cause of death from the previous application is claimed to be war, the cause of death listed in this application is unknown. I would expect that if the documents were issued from [Hospital] the cause of death should have been indicated.  

24. The written submissions of 28 May 2018 stated:

    The visa applicants’ parents are reported to have died of natural causes in [Town 1], South [Sudan]. The review applicant’s father and mother died on [Date 5] and [Date 6] respectively and both deaths occurred during the conflicts in South Sudan. Her father died of [Medical Condition 1] in [Town 1] in[Date 5] and her mother died of [Medical Condidion 2] complications at home in [Town 1] in [Date 6]. The review applicant’s oldest child [Mr F] who was under the full care of his grandmother prior to his migration to Australia in 2014, witnessed [his] grandmother’s death in South Sudan on [Date 6] and he has provided a statutory declaration to that effect. The review applicant travelled to South Sudan in 2014 mainly to obtain the confirmation of her parents’ death  [from] the South Sudanese Health [Ministry]  [and] this information was provided to the Department to support the applicants’ applications. This is because decades of endless conflicts in South Sudan have rendered the country chaotic, extremely backward, undeveloped and impoverished. As a result, the country does not have any facility or mechanism in place to keep and maintain official records of births and deaths. Accordingly it is submitted that the visa applicants cannot be cared for by either of their parents because each of them is dead and therefore meets the requirements of r.1.14(b).

    There is no evidence before the Tribunal to prove that the visa applicants’ parents are alive. In the alternative, I ask the Tribunal to consider that the whereabouts of the visa applicants’ parents are unknown. The ongoing conflicts in South Sudan have: claimed more than 200 thousand lives, mostly civilians; displaced millions of South Sudanese; resulted in disappearance of more than 80 thousand South Sudanese; resulted in constant abduction and rape of vulnerable women and children; resulted in conscription of little children into the army to become child soldiers and; resulted in commission of atrocities and crimes against humanity by both sides of the conflicts.

25. At the hearing, [Ms D] told the Tribunal that both of her parents had died, her father having died on [Date 5] in [Town 1] of [Medical Condition 1] and her mother having died on [Date 6] from [Medical Condition 2]. Similarly, [Ms A] gave oral evidence to the Tribunal that her father had died on [Date 5] of [Medical Condition 1] and that her mother had died on [Date 6] of ‘[Medical Condition 2]’. She told the Tribunal that both of her parents had died in [Town 1] and that her mother had been sick for a long time.

26. The Tribunal notes the contents of [Mr E]’s statutory declaration made on 29 May 2018. He declared that he had lived with his grandmother, [Ms I]and the three visa applicants in [Town 1], South Sudan and that he had witnessed his grandmother’s death on [Date 6]. He declared that ‘[t]he burial and funeral services of my grandmother were conducted by our Evangeles church community in [Town 1] led by Pastor [J]. [Mr E] gave oral evidence at the hearing about life with his grandmother and her death. The Tribunal found [Mr E] to be credible and gives weight to his evidence.

27. As noted above, in this case, [Ms D] has provided two death certificates issued by the South Sudanese Ministry of Health to corroborate the deaths of her parents. The delegate was critical that these death certificates were issued in 2014 and listed the causes of each death as ‘unknown’. The Tribunal does not share the delegate’s concern that the death certificates do not state the causes of death. This is because the Tribunal notes and accepts the information before it about official record keeping being particularly problematic in South Sudan. However, the Tribunal notes that the country information report states that death certificates are documents with a high risk of fraud and the report recommended hospital or burial records as the preferred form of evidence to corroborate claimed deaths.

28. [Ms D] has not provided hospital or burial records in this case. However, she did file the following documents with the Tribunal:

    ·a copy of a signed letter, dated 25 September 2017, addressed to the Tribunal from  Pastor [J] of [Named] Church in Khartoum, Sudan, on the letterhead of that organisation, confirming details of the deaths of Mr [D] and Mrs [I] and stating that he oversaw the funeral services for both;

    ·a copy of a signed letter, dated 5 October 2017, addressed to the Tribunal from the named leader of the [specific] community in Melbourne, on the letterhead of [Organisation 1], confirming details of the deaths of Mr [D] and Mrs [I] and stating that ‘[t]hey are registered in our small community as deceased’; and

    ·a copy of a signed, ‘to whom it may concern’ letter, dated 15 October 2017, from the named leader/chief of the [Town 1] community of South Sudan on the letterhead of the [Organisation 2], confirming details of the deaths of Mr [D] and Mrs [I].

29. The Tribunal notes that the three documents are particularly detailed. The Tribunal accepts and gives greater weight to this evidence, than to the two death certificates, that Mr [D] and Mrs [I], [Ms D] and [Ms A]’s parents, died in [Date 5] and [Date 6] respectively.

30. The Tribunal does not share the delegate’s concern about the fact that [Ms A]’s previous application claimed that her parents had died [during] the war. The Tribunal accepts the explanation offered that this information was included in the earlier application due to errors made by the friend who had filled in the form. The Tribunal considers that the explanation is plausible given that the Tribunal has also accepted a similar explanation in respect of the earlier application containing a different date of birth for [Ms A]. 

31. The Tribunal notes the evidence before it that [Ms D] is the person providing financial and emotional support to the visa applicants. For example, the Tribunal notes [Ms D]’s affidavit of 21 January 2014 which is the Department’s file. [Ms D] gave consistent oral evidence at the hearing. She outlined the financial support she provides to [Ms A]. [Ms A] also said that both of her parents were dead and that [Ms D] was the only one sending her money and looking after her, [Ms B] and [Ms C]. The Tribunal notes that [Ms A] wept when giving her evidence and that [Ms D] also wept upon hearing it.

32. The Tribunal notes that there is documentary evidence corroborating [Ms D] and [Ms A]’s claims that [Ms D] provides financial support to [Ms A]. The Department’s file contains funds transfers from [Ms D] to [Ms A] from [Date 7] to [Date 8] and [Ms D] submitted copies of records to the Tribunal which evidence her as having sent many money transfers to [Ms A] at various [dates].

33. The Tribunal gives weight to the evidence before it and finds that [Ms A] cannot be cared for by either of her parents as both her parents—Mr [D] and Mrs [I]—are dead.

34. In view of the evidence before it, the Tribunal finds that r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests of the applicant – r.1.14(c)

35. 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 applicant. 

36. The evidence before the Tribunal is that [Ms A], [Ms B] and [Ms C] are presently living in a refugee camp in Uganda. [Ms D] told the Tribunal that she sends them money whenever possible to support them. She is concerned about their safety in the camp.

37. There is nothing before the Tribunal to suggest that the grant of a visa would not be in [Ms A]’s best interests. Indeed, to the contrary, on 11 December 2018, the representative submitted that [Ms A] was vulnerable remaining in Uganda, stating:

    … noting that the visa applicant is already a rape victim resulting in unplanned pregnancy and birth of her child, the plight of the vulnerable female orphans living alone in a foreign country where also rape, adoption, violence against women and killings are prevailing, warrants a high level of care and attention.

38. The Tribunal is satisfied that there is no compelling reason to believe that the grant of the visa is not in [Ms A]’s best interests. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

    Conclusion

39. Given the findings above, cl.117.211 is met.

40. The Tribunal finds that, at the time of this decision, [Ms A] does not continue to satisfy the criterion in cl.117.211, but only because she has since turned 18. It follows that cl.117.221 is met.

1. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   CONSIDERATION OF [MS B]’S CLAIM

2. As the Tribunal has found that [Ms A] meets the criteria in cl.117.221 and cl.117.221, [Ms B]’s ability to satisfy the secondary criteria should also be reconsidered.

   CONSIDERATION OF [MS C]’S CLAIM

3. For the following reasons, the Tribunal has concluded that the decision not to grant [Ms C] the visa should be affirmed.

4. As noted earlier, the issue before the Tribunal is whether, at the time of application, [Ms C] met the requirements of the definition of ‘orphan relative’, specifically r.1.14(a)(iii) (that is, whether she is a relative) and (b) (that is, that there is no parental care). 

   Relative – r.1.14(a)(iii)

5. [Ms C] claims to be [Ms D]’s sister. However, as noted earlier, the delegate was not satisfied that [Ms D] and [Ms C] are sisters.

6. At the hearing, [Ms D] told the Tribunal that both [Ms A] and [Ms C] were her sisters. [Ms C] told the Tribunal that [Ms D] was her older sister and the person who takes care of her. [Ms A] gave oral evidence that [Ms D] was her older sister and that [Ms C] was her younger sister. Similarly, [Mr E] told the Tribunal that [Ms D], [Ms A] and [Ms C] were sisters.

7. As noted earlier, after the hearing, the Tribunal invited [Ms D], [Ms A] and [Ms C] to provide DNA evidence in order to bolster their claims that they are sisters. 

   The s.359A letter of 17 September 2018

8. The Tribunal wrote to [Ms D] on 17 September 2018, attaching a copy of the report of the DNA results dated [in] September 2018, and noted that the results were adverse to [Ms C]’s case. Accordingly, the Tribunal invited [Ms D] to comment on respond to the particulars of that adverse information pursuant to s.359A of the Act.

9. The key part of the letter is extracted below.

   The particulars of the information are:

   ·     The results indicate that the likelihood of you, [Ms D], and [Ms C] being full siblings is ‘unlikely’ and of being half siblings is ‘unlikely’; and

   ·     The results indicate that the likelihood of [Ms A] and [Ms C] being full siblings is ‘unlikely’ and of being half siblings is ‘inconclusive’.

   This information is relevant to the review because it casts doubt on the claim that [Ms C] is your and/or [Ms A]’s full sister.

   The above information is also relevant because it suggests that it is ‘unlikely’ that [Ms C] is even related as your half sibling and that there is a low probability (1 < x < 9 in the range used) that [Ms C] is even related to [Ms A] as a half sibling.

   If the Tribunal relies on this information in making its decision, it may conclude that [Ms C] is not your sister or any other permissible relative and affirm the decision under review with respect to [Ms C] on that basis.

10. The Tribunal invited [Ms D] to comment on or respond to the information, or seek an extension of time, by 1 October 2018. The letter stated that if the response or request for an extension of time was not received by that date that the Tribunal may make a decision on the review without taking any further action to obtain [Ms D]’s views on the information. The letter also stated, in bold type, that [Ms D] would lose any entitlement that she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

100.   On 2 October 2018, the representative contacted the Tribunal by telephone to inform that, due to his error, [Ms D] had missed the deadline for responding. He advised the Tribunal that [Ms D], who was pregnant, had collapsed from learning of the adverse information and was being treated by a doctor.

101.   On 12 October 2018, at the direction of the Member presiding, an officer of the Tribunal contacted the representative to inform him that an extension of time in which to respond to the s.359A letter cannot be granted as the request was received after the due date. However, [Ms D] should be informed that she is at liberty to make written submissions at any time up until the Tribunal makes its decision. The representative informed the Tribunal that [Ms D] had had her baby prematurely and that her attendance at hospital makes it difficult for him to submit the materials to the Tribunal pursuant to her instructions.   

The review applicant’s response

102.   On 31 October 2018, the representative made written submissions and attached a report from [Ms D]’s treating clinical psychologist dated 24 October 2018. 

103.   The written submissions stated the following:

The sponsor is dumbfounded at the heart-rending outcome of DNA testing which disputes her biological relationship with her younger sister [Ms C] who she has ever known as her sister since she was 2 years old. The sponsor is extremely concerned about telling [Ms C] the outcome of the DNA testing as she will become depressed and may end her own life. [Ms C] is a [female] with no relatives both in South Sudan and Uganda. She and her elder sister [Ms A] fled to Uganda many years ago because of the conflicts and abuses in South Sudan. Therefore, the sponsor pleads with the Tribunal to consider this case sympathetically and not to affirm the Department’s decision given that she, [Ms C] and [Ms A] have always been together all their lives and were raised by the same mother who is now deceased.

The s.359A letter of 28 November 2018

104.   The Tribunal wrote to [Ms D] on 28 November 2018, attaching a copy of a second report of the DNA results dated [in] September 2018, and noted that the results were adverse to [Ms C]’s case. Accordingly, the Tribunal invited [Ms D] to comment on respond to the particulars of that adverse information pursuant to s.359A of the Act.

105.   The key part of the letter is extracted below.

The particulars of the information are:

·     The results indicate that the likelihood of you, [Ms D], and [Ms C] being in an aunt-niece relationship is ‘unlikely’. The Tribunal notes that the category of ‘unlikely’ is the lowest possible category to establish family relationships. 

This information is relevant to the review because it casts doubt on the claim that [Ms C] is an orphan relative of you—being the relevant Australian relative.

If the Tribunal relies on this information in making its decision, it may conclude that [Ms C] is not your relative on the basis that she is not your niece—one of the permitted family relationships in the definition of ‘relative’ in r.1.03(b)—and affirm the decision under review with respect to [Ms C] on that basis.

106.   The Tribunal invited [Ms D]’s response by 12 December 2018.

The review applicant’s response

107.   The representative responded by forwarding the clinical psychologist’s report of 24 October 2018, which had been submitted earlier in response to the first s.359A letter. It states that [Ms D] was ‘stunned’ when she had discovered that [Ms C] was not her biological sister and that she had ‘initially assumed that she might have been her older sister’s child; however, the DNA indicated they were not biologically related’.

108.   The psychologist’s report also stated:

[Ms D] believed her mother must have adopted or taken her sister in as a baby while she was living with her first husband in [Country 1]. At the time her mother informed her about the birth of her youngest sister [Ms C], her mother was residing in Khartoum while she was residing in [Country 1] with her husband. When the child was [young], she travelled to Sudan with her then husband to see her mother and the new child. Throughout her whole life [Ms D] believed her youngest sister was her biological sibling. [Ms D] felt depressed because she did not want her sister to find out that they were not biologically related. The whole situation brought up more questions than answers. Unfortunately, [Ms D] believed she would never find the answer to her sister’s parentage because her mother took that secret to her grave.    

The Tribunal’s conclusion on the DNA evidence

109.   The Tribunal has considered the documents on the Department’s and the Tribunal’s files; the oral evidence given at the hearing; the DNA evidence and the responses provided to the DNA evidence.

110.   The DNA evidence indicates that [Ms D] and [Ms C] are unlikely to be related as full siblings or half siblings and that [Ms A] and [Ms C] are unlikely to be full siblings. The category of unlikely is the lowest possible category to establish family relationships. The DNA evidence indicates that it is inconclusive whether [Ms A] and [Ms C] are half siblings. The category of inconclusive is the second lowest possible category in the hierarchy used.

111.   The Tribunal has considered the evidence concerning whether [Ms D] and [Ms C] are sisters. It prefers the evidence of the DNA testing. The Tribunal is not satisfied that [Ms C] is a sister of either [Ms D] or [Ms A].

112.   The Tribunal has also considered the evidence concerning whether [Ms D] and [Ms C] are in an aunt-niece relationship. The DNA evidence indicates that [Ms D] and [Ms C] are unlikely to be in an aunt-niece relationship. As noted above, the category of unlikely is the lowest possible category to establish family relationships.

113.   Again, the Tribunal prefers the evidence of the DNA testing to other evidence that is before the Tribunal. The Tribunal is not satisfied that [Ms C] is [Ms D]’s niece.

114.   [Ms C] did not meet r.1.14(a)(iii) at the time of application and she does not meet it at the time of this decision.

No parental care—r.1.14(b)—andbest interests of the applicant – r.1.14(c)

115.   As the Tribunal has found that [Ms C] does not meet r.1.14(a)(iii), it is unnecessary for the Tribunal to consider whether she meets the other aspects of the definition outlined in r.1.14(b) and (c).

Conclusion

116.   Given the findings above, the Tribunal is not satisfied that [Ms C] is an orphan relative of [Ms D]. As [Ms C] does not meet the definition of orphan relative, the Tribunal must affirm the decision under review.

117.   Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. Now that the Tribunal has made this decision, [Ms D] may wish to apply for ministerial intervention in respect of [Ms C].

118.   In case [Ms D] and [Ms C] take such action, the Tribunal considers it incumbent on the Tribunal, in this decision, to inform [Ms D] of some adverse information on the Department’s file that has not been put to her or to [Ms C] for comment or response previously and which they may wish to address in any submissions to the Minister. The Department’s file contains a record of Departmental officers’ attendance, [in] January 2015, at [a school] in [City 2] to verify [Ms C]’s school records. The file note (f.69) states that the following day, an officer received an email from the named senior administrator of the school stating that ‘the individuals the school believed were the applicant’s siblings are neighbours and not siblings’. The Tribunal did not consider it necessary to put this information to [Ms D] to comment on or respond to pursuant to s.359A when the Tribunal was assessing the issue of whether [Ms C] met r.1.14(a)(iii) because the Tribunal considered that the DNA results were very strong evidence weighing against [Ms C] meeting r.1.14(a)(iii).

DECISION

119.   The Tribunal remits the first and second-named visa applicants’ applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first-named visa applicant meets 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.

120.   The Tribunal affirms the decision not to grant the third-named visa applicant a Child (Migrant) (Class AH) visa.

Justine Clarke
Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.14Orphan relative

An 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.