1617259 (Migration)

[2018] AATA 5290

1617259 (Migration) [2018] AATA 5290 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617259

MEMBER:Margie Bourke

DATE:10 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 10 December 2018 at 11:54am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – not an orphan relative of an Australian relative – credibility issues – insufficient evidence of relationship between father of the visa applicant and the review applicant – insufficient evidence of father’s death – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,

Migration Regulations 1994, Schedule 2, cls 117.211, 117.223, rr 1.03, 1.14, PIC 4020

CASES

Nguyen v MIMA (1998) 158 ALR 639

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 an application for review of a decision made by a delegate of the Minister for Immigration on 9 August 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 July 2014. 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. 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 cl.117.211.

4. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant met the requirements of orphan relative within the meaning of r.1.14. The delegate also refused to grant the visa because the applicant did not meet cl.117.223 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant met the requirements of PIC 4020.

5. The review applicant appeared before the Tribunal on 29 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone, and one witness who attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The delegate in the decision record dated 9 August 2016, found the applicant did not meet the criteria for orphan relative as required at the time of application in cl.117.211. The delegate also found the applicant did not meet the requirements of PIC 4020, as required in cl.117.223. I have considered the first of these issues in this decision record.

   Is the visa applicant an orphan relative of an Australian relative?

8. 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.

9. ‘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.  In the present case, it is claimed that the review applicant, is the aunt of the visa applicant and is the relevant Australian relative.

10. For the reasons below, I am not satisfied that on the evidence available to me the visa applicant was an orphan relative of an Australian relative at the time of application.  

    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. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

12. The visa applicant in her oral evidence referred to the review applicant as her aunt, and I accept that the visa applicant considers the review applicant to be her aunt.

13. The review applicant provided the tribunal with a copy of the Department’s decision record dated 9 August 2016 with the application for review. The review applicant migrated to Australia many years ago.  In the Department’s decision record the delegate refers to the review applicant’s migration application file which is dated 2001, and in which the review applicant named her four siblings as [Mr A], [Mr B], [Mr C] and [Mr D].

14. The claim of relationship between the review applicant and the visa applicant is that the visa applicant’s father is the review applicant’s brother, and therefore the visa applicant is the niece of the review applicant. The evidence provided in support of the claim that the visa applicant met the criteria for orphan relative included the evidence that her father was deceased. The evidence included a death certificate and statutory declaration from the review applicant in which the visa applicant’s father’s name was recorded as [Name 1] on the death certificate, and [variation of Name 1] in the review applicant statutory declaration sworn 15 May 2014.

15. The review applicant told the hearing that the visa applicant’s father had changed his name to [given name of Name 1]. The review applicant stated it was very common for people to change their name during the war to avoid being arrested by the authorities if the authorities were looking for them. The review applicant stated that the visa applicant’s father changed his name after she left the country.

16. I asked the review applicant to tell me the name of her four brothers. The review applicant stated that names of her four brothers were [Mr C], [Mr D], [Mr E] and [Mr A]. The review applicant stated several times that the name of the brother who changed his name to [given name of Name 1], was  [Mr E]. I asked the review applicant to repeat the original name of her brother who changed his name, and she repeatedly answered that his name was [Mr E]. I discussed with the review applicant that she had not put this name on her application to migrate form, and she stated that it must be there. I asked the review applicant about the name of [Mr B] on her application. The review applicant stated she was confused and made a mistake and that her fourth brother’s name was [Mr B], not [Mr E]. The review applicant stated that [Mr B]  changed his name a long time ago.

17. I discussed with the review applicant that I had doubts that she would forget the names of one of her brothers. The review applicant told me that the brother who changed his name, changed it after she had left the country. I have considered the review applicant’s evidence that she could not remember the name of her brother, which was the name that she would have known when she left Sudan. I have considered the review applicant’s evidence, and have noted that she knew the name of her other three brothers from the time of her application to migrate form in 2001 and at the time of the hearing. I have concerns about the credibility of the evidence when I note that the name of the brother whose name she had forgotten, is also the name of the brother it is claimed both changed his name and is the father of the visa applicant. I have real concerns about the credibility of the evidence about the relationship between the father of the visa applicant and the review applicant. I have doubts about the credibility of the evidence that that the review applicant’s brother is also the visa applicant’s father. I have concerns that the visa applicant’s father’s name may be [given name of Name 1], or may previously have been [Mr E].

18. I have considered that it is difficult to obtain proof of relationship in the form of birth certificates from Sudan due to the ongoing war and lack of records available in the country. However I have balanced the lack of confirmation through authorised documents, with the doubtful oral evidence of the relationship between the review applicant and the visa applicant. After considering the evidence available to me that the review applicant did not record the name [Name 1] as a brother on her application to migrate form, combined with her evidence that she could not remember the name of the fourth brother as recorded on her application to migrate form (namely [Mr B]) I have significant doubts as to the credibility of the oral evidence that the visa applicant’s father [Name 1] is the brother of the review applicant.

19. I accept that the visa applicant considered the review applicant is her ‘aunt’, and the statement of [a witness] referred to the review applicant as the auntie of the visa applicant.  I accept this is an indication of a relationship or connection.  The calling or referring to someone as a person’s ‘aunt’ does not necessarily mean that persons are related, or that the person is the sibling of one of the first person’s parents. I have balanced the evidence before me, and while I accept that the visa applicant considers the review applicant to be her aunt, I am not satisfied that this relationship is a biological aunt niece relationship where the aunt is the biological sibling of one of the niece’s parents.

20. I am not satisfied that the person known as [Name 1] is the brother of the review applicant. For these reasons I am not satisfied that the review applicant is the aunt of the visa applicant, and her relative within the meaning of r.1.03.

21. Accordingly, r.1.14(a)(iii) was not met at the time of application.

    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. 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.

23. I have considered the statutory declaration that the review applicant provided to the Department which is signed and dated 15 May 2014. In this statutory declaration the review applicant makes the following declarations.  

24. “ I am an Australian citizen and have lived in Australia since 29/11/2003. I am married and have six children who live with my husband and I. My brother [variation of Name 1] and sister in law [were] living in the Nuba Mountains in Sudan with their two [children]. My brother was killed [in] 2003 when our village was attacked by Sudanese government forces. My sister in law [was] pregnant with their third child [the visa applicant] at the time. She has been responsible for raising the three children since my brother’s death. My husband and I had been sending money to her regularly to support her and the children. On [date]/05/2011 I was contacted by friends living in the Nuba Mountains who told me the terrible news that our village had been attacked again. My sister in law has been missing since this time and we believed that she has been killed….”

25. Further on in the statutory declaration the review applicant harm makes a comment on the fact the visa applicant’s surname was misspelt in her [passport].

26. I discussed this statutory declaration that the review applicant had provided to the Department with the review applicant in the hearing. The review applicant stated that she was illiterate in English and did not know that whoever had drafted this statutory declaration had made the mistakes in it. The review applicant stated that the visa applicant’s father had died in 2012 as per the death certificate that she had provided.

27. I have considered the review applicant’s explanation as to the inconsistencies between the information in her 2014 statutory declaration and her subsequent written and oral evidence that the visa applicant’s parents had died or gone missing at the same time in 2012. I accept that the review applicant is not literate in English. However I note that in the statutory declaration dated 15 May 2014 paragraphs four to seven provide details in relation to the date of the visa applicant’s father’s death ([date] February 2003), the pregnancy of his wife with the visa applicant at that time, and the number of children she already had, and the financial support the review applicant and her husband had provided to the family since the death of the visa applicant’s father. The review applicant confirmed that the details in the first three paragraphs, including the spelling of names and her personal details are correct. I find it unlikely that a statutory declaration provides precise and correct details followed by incorrect details based on instructions provided by the review applicant.

28. I find that the review applicant has given to different accounts of the years the visa applicant’s father is claimed to have died, and the circumstances of his family at the time of his death in the information she has provided to the Department in support of the application for the visa. I do not accept that the information in the 2014 statutory declaration of the review applicant has been provided mistakenly due to the review applicant’s illiteracy in English.

29. I have considered the information in the Department’s decision record that the death certificate provided was verified and assessed as being nongenuine. I have considered the review applicant’s evidence that she paid US$1200 for the death certificate. I have considered the review applicant’s evidence that she asked her cousin [to] obtain the certificate on her behalf. I have considered the review applicant’s evidence that her cousin is a good and trustworthy man and he worked as security at the hospital where the certificate was obtained. I have considered the review applicant’s evidence that the cost for the death certificate was the fee charged for postage or delivery of the certificate to Juba.

30. I have considered the evidence of the review applicant that she entrusted the certificate to be issued by her relative [from] the hospital. I accept that during wartime travel can be hazardous, and there may have been some extra delivery fees to cover the risk. I have also considered the opinion in the Department’s decision record that the payment of the significant amount of US$1200 can indicate that the certificate was not obtained through proper channels.

31. I have considered the evidence of the review applicant in relation to the allegation that the Sudanese embassy in Cairo advised the stamp on the death certificate was fake, that the stamp was computer-generated and that the certificate was issued in 2012 when the embassy had no stamps at that time. I have considered the evidence of the review applicant that she was advised by her friend in Egypt with whom the visa applicant stayed that the death certificate was delivered to the visa applicant with no stamp at all. I have assessed the evidence available to me, and that includes that the death certificate was analysed as having a computer-generated stamp on it, and the Department was advised that the stamp on the certificate was not used at the time the certificate was claimed to be issued.

32. I have considered all the evidence in relation to the death certificate and I do not find that it is a reliable document that the visa applicant’s father is deceased.

33. I have considered there is conflicting evidence provided by the review applicant in relation to the time and circumstances of the visa applicant’s father’s claimed death. I have considered this conflicting evidence indicates the evidence before me is not reliable evidence that the visa applicant’s father is deceased.

34. I have considered that the evidence of the visa applicant and the witness [were] credible. I accept that the visa applicant spent some time in Egypt living with the sister of the [witness]. I accept that this was an unpleasant and difficult time for the visa applicant for various reasons. I accept that the visa applicant is currently living with her cousin in Nairobi. I also noted the distress of the visa applicant, and the review applicant during the hearing. I accept that the review applicant is financially supportive of the visa applicant, and she provided records of the transfers of money she gives to an adult for the visa applicant.

35. The review applicant wished the tribunal to hear evidence from another witness, who was unable to attend the hearing and then not contactable by telephone. The tribunal allowed the review applicant a further seven days to provide a statement from this witness in relation to the evidence that it was intended he provide at the hearing.

36. The tribunal received the signed statement dated 5 December 2018 from the [witness].  He stated he knew the late [visa applicant’s father] since he was young in Sudan as they grew up and went to school together. He stated that [the visa applicant’s father] was killed by government forces in 2012, his wife ran away and no-one cares for the children. He further stated that [(the review applicant)] brought the visa applicant from Sudan to Egypt and then to Kenya, where she is by herself, and no-one looks after her.  He referred to the review applicant as Auntie of the visa applicant in the statement.

37. I have considered this statement from [the witness], which does not clarify how he knows of the death of the visa applicant’s father. I am not advised whether the witness was present in Sudan and had direct knowledge of the visa applicant’s father’s death, or whether he was advised of the circumstances by other people. This limits the weight I can give the statement as evidence that the visa applicant’s father is deceased.

38. I am not satisfied after carefully assessing all the evidence before me that the evidence is sufficient to establish that the visa applicant’s father is deceased.

39. For these reasons I am not satisfied that the visa applicant’s father was unable to care for her for the reasons that he was deceased, of unknown whereabouts or permanently incapacitated, based on the evidence before me.  Accordingly, r.1.14(b) was not met at the time of application.

40. Given the findings above, I am not satisfied that the visa applicant meets the requirements of cl.117.211.

41. As I have found the visa applicant does not meet the requirements of cl.117.211, I have not considered whether the visa applicant satisfies PIC 4020 for the purposes of cl.117.223.

42. 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

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

    Margie Bourke
    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.