1702164 (Migration)

[2018] AATA 2401

1702164 (Migration) [2018] AATA 2401 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702164

MEMBER:K. Chapman

DATE:25 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the 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;

·cl.117.221 of Schedule 2 to the Regulations; and

·the second named visa applicant meets the requirements of cl.117.312 of Schedule 2 to the Regulations.

Statement made on 25 June 2018 at 9:03am

CATCHWORDS

Migration – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) visa – First named visa applicant and review applicant claim to be biological full siblings – Mother deceased – Birth certificate details incorrect – DNA testing confirmed applicants are biological half-siblings – No false or misleading information deliberately provided – First named visa applicant’s father unknown – Member of the same family unit –  Further investigations necessary to assess claims of second named visa applicant – Credible witnesses – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 375A

Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211, 117.221, 117.312

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 7 December 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicants applied for the visas on 19 February 2015. The first named visa [applicant], claims to be the sister of the sponsor for the visa, [the review applicant]. The second named visa [applicant], is claimed to be a dependent of the first named visa applicant. The visa applicants are nationals of Ethiopia. The visa sponsor is an Australian citizen of Ethiopian heritage and she is the review applicant in this matter.   

3. At the time of the visa application, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). Relevantly to this case, they include cl.117.211 and cl.117.221. The term ‘orphan relative’ is defined in r.1.14.

4. The delegate was not satisfied that the first named visa applicant is an orphan relative of the review applicant because initial DNA testing confirmed they were not biological full siblings as claimed. Accordingly, the delegate refused the visa application determining the first named visa applicant did not satisfy the requirements of cl.117.211 and cl.117.221, which require her to be an orphan relative at the time of the visa application and the time of decision. Given that the delegate refused to grant the visa to the first named visa applicant, the second named visa applicant was also refused the grant of the visa and a full assessment of her claimed dependency upon the former was not conducted. On 8 February 2017, the review applicant applied for review of the visa refusal decisions, providing a copy of the decision record with her application.

5. The review applicant, through her representative, requested the Tribunal permit her to undertake further DNA testing in support of her application for review. The Tribunal granted this request and placed the matter in abeyance pending the outcome of such testing. Subsequently, the Tribunal received DNA test results confirming that the review applicant and the first named visa applicant are biological half-siblings to the probability of 99.98%. They share the same biological mother. The review applicant submitted additional pre-hearing documentary evidence to the Tribunal including written submissions, money transfer receipts, communications records and a medical report. The aforementioned material has been duly considered by the Tribunal.

6. The review applicant appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing. During the hearing, the Tribunal raised information with the review applicant pursuant to s.359AA of the Act and granted her time following the hearing to provide a response. On 18 June 2018, a response was received enclosing final written submissions, a Statutory Declaration of the review applicant dated 11 June 2018 and a medical report dated 23 May 2018. The aforementioned material has been duly considered by the Tribunal.

7. For the following reasons, the Tribunal has concluded that the decisions under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The primary issue in the present case is whether the first named visa applicant is an ‘orphan relative’ of the review applicant at the time of application and the time of decision. 

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

9. Clause 117.211 requires that at the time of application the first named visa applicant is an orphan relative of an Australian relative (cl.117.211(a)), or is not an orphan relative only because she has been adopted by an Australian relative (cl.117.211(b)). The first named visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because she has turned 18: cl.117.221.

10. ‘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 the review applicant, who is the biological half-sister of the first named visa applicant, is the relevant Australian relative. The review applicant is an Australian citizen.

11. For the reasons below, the first named visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the first named visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is met and continues to be met at the time of this decision.

    Age – r.1.14(a)(i)

12. Regulation 1.14(a)(i) requires that the first named visa applicant has not turned 18. At the time of application the first named visa applicant was aged [age] years. Accordingly, r.1.14(a)(i) was satisfied by her at the time of application. The first named visa applicant no longer satisfies this requirement at the time of this decision as she is now aged [age] years.

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

13. Regulation 1.14(a)(ii) requires that the first named visa applicant does not have a spouse or de facto partner. There is no evidence before the Tribunal to suggest that the first named visa applicant had a spouse or de facto partner at the time of application. Nor is there any evidence to suggest she does so at the time of this decision. Accordingly, r.1.14(a)(ii) was satisfied by the first named visa applicant at the time of application and continues to be satisfied by her at the time of decision.

    Relative – r.1.14(a)(iii)

14. Regulation 1.14(a)(iii) requires the first named 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.

15. The review applicant is an Australian citizen. The first named visa applicant has been confirmed by DNA test results dated 21 March 2018 to be the biological half-sister of the review applicant. Therefore, the Tribunal finds that the first named visa applicant is a relative of the review applicant. Accordingly, r.1.14(a)(iii) was satisfied by the first named visa applicant at the time of application and continues to be satisfied by her at the time of decision.

    No parental care – r.1.14(b)

16. Regulation 1.14(b) requires that the first named visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The review applicant contends that she sponsored the first named visa applicant for the visa under the impression they shared the same biological parents. She was shocked to learn they were not biological full siblings after initial DNA testing. It has taken her some time to come to terms with the fact that they do not share the same biological father.

17. The review applicant informed the Tribunal that her biological mother died in Addis Abba of a long term illness [in] March 2014. She is buried in the Tigray region. A Judicial Order from the Tigray National Region state dated [in] July 2014 confirms her passing. The Tribunal is satisfied that the biological mother of both the review applicant and the first named visa applicant is deceased.

18. The review applicant advised that she fled Ethiopia around the age of 13 years when her father was killed by Eritrean soldiers. Their village was destroyed and personal documentation was lost. Her sister, the first named visa applicant, was around the age of 1 or 2 years at that time. The review applicant became separated from her family and ended up residing in a refugee camp in [another country] for some years. The review applicant subsequently gave birth to a [child]. She experienced trauma in that camp and in due course was granted an [Australian permanent] visa. The review applicant arrived in Australia in March 2010. The review applicant had no reason to doubt that she and the first named visa applicant shared the same biological father until the initial DNA test results were obtained.

19. The review applicant returned to Ethiopia in late 2013 to see her biological mother who was ill. As previously noted, her mother passed away in March 2014. The review applicant was not advised by her mother that the first named visa applicant had a different biological father to her. The review applicant lives in Australia now with her own [child] and has no other family support. She suffers mental health concerns arising from her traumatic experiences in Africa. Medical evidence was before the Tribunal confirming this situation.

20. During the hearing the Tribunal discussed with the review applicant that the delegate determined she did not declare the first named visa applicant in her own [Australian permanent] visa application. The review applicant advised that the first named visa applicant was referred to but under another name which was of a colloquial nature. The Tribunal asked the review applicant to explain how the Ethiopian Birth Certificate was obtained for the first named visa applicant. She advised that it was obtained from a local Government office as it was required for the Subclass 117 visa application, adding that the original records held by the family were lost when their village was destroyed. The review applicant advised that the Government records indicated the first named visa applicant shared the same biological father as her because that information would have been provided when the former was very young. However, ultimately the review applicant is uncertain as to the particulars of how the parentage of the first named visa applicant came to be recorded.

21. The Tribunal raised with the review applicant that a certificate pursuant to s.375A of the Act dated 2 March 2017 is contained in the Departmental file. The Tribunal provided a copy of that certificate to the review applicant and invited submissions on its validity. The material concerned deliberations between Departmental staff regarding perceived integrity issues with the visa application. Ultimately, the Tribunal determined that the s.375A certificate was invalid as it does not state a public interest ground, rather it only describes the material under its cover. Accordingly, the Tribunal provided that material to the review applicant through her representative and provided time for submissions upon it.

22. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised with the review applicant that the latest DNA test results confirmed the first named visa applicant is her biological half-sibling. Accordingly, the Birth Certificate and visa application information appear to contain misleading information regarding the parentage of the first named visa applicant and suggest that no evidence of the death, incapacitation or whereabouts of her biological father has been provided with respect to the requirements of r.1.14(b). The review applicant requested more time after the hearing to provide a response and this was granted by the Tribunal.

23. Following the hearing, written submissions and a Statutory Declaration by the review applicant dated 11 June 2018 were submitted to the Tribunal. A medical report dated 23 May 2018 was also submitted which confirms the review applicant is suffering from mental health issues. In summary, the review applicant contends that she was unaware the first named visa applicant has a different biological father to her until the initial DNA testing. This is the source of some distress. She is unable to search for the biological father of the first named visa applicant as she is unaware who that might be or where to start looking. The review applicant’s mother never told her the true situation and she has now passed away so the identity of that man is likely to remain unknown. The review applicant submits that the whereabouts of the biological father of the first named visa applicant is unknown and therefore she satisfies the requirements of r.1.14(b). The review applicant also submits that false and misleading information was not knowingly provided in relation to the submitted Birth Certificate as the Government records reflect the information provided to them. The review applicant also submits that there are compelling and compassionate circumstances relevant to her case due to the traumatic experiences she has suffered in Africa and the mental health issues she currently faces. She submits that the presence of the first named visa applicant will assist her recovery. The Tribunal has very carefully considered these submissions.

24. The Tribunal had the benefit of observing the review applicant give her oral evidence. She answered questions in an open fashion and the Tribunal accepts that she gave truthful evidence. The Tribunal also accepts that the review applicant, and her family, fled their village in Ethiopia when it was attacked by Eritrean soldiers and that personal records were lost at that time. The review applicant was forced to flee the country and in due course spent many years in a refugee camp where she suffered trauma and was separated from her family. Given such circumstances, the Tribunal accepts that the Birth Certificate for the first named visa applicant was obtained from Government sources based on information in their possession and that no false or misleading information was deliberately provided, nor was there any element of deceitful conduct involved.

25. The Tribunal has carefully assessed all of the evidence in the present matter. It accepts that in the difficult circumstances faced by the review applicant and her family it is plausible that her and the first named visa applicant were unaware they did not share the same biological father. Having regard to the overall circumstances of the matter, the Tribunal accepts that the whereabouts of the first named visa applicant’s biological father is unknown, both at the time of application and the time of this decision. Accordingly, the Tribunal finds that the first named visa applicant cannot be cared for by either parent because her biological mother is deceased and her biological father is of unknown whereabouts. Therefore, the Tribunal finds that r.1.14(b) was satisfied by the first named visa applicant at the time of application and continues to be satisfied by her at the time of decision.

    Best interests – r.1.14(c)

26. 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 first named visa applicant. There is no evidence before the Tribunal to suggest that the grant of the visa would not be in her best interests. Accordingly, the Tribunal finds that r.1.14(c) was satisfied by the first named visa applicant at the time of application and continues to be satisfied by her at the time of decision.

27. Given the findings above, cl.117.211 is satisfied by the first named visa applicant. Further, the Tribunal finds that the first named visa applicant does not continue to satisfy the criterion in cl.117.211, but only because she has now turned 18 years of age. It follows that cl.117.221 is satisfied by the first named visa applicant.

    Is the second named visa applicant a member of the family unit of the first named visa applicant?

28. The Departmental delegate did not fully assess whether the second named visa applicant is a member of the family unit of the first named visa applicant given that the latter was refused the grant of the Subclass 117 visa. The Tribunal notes that documents in support of the visa application contend the second named visa applicant is the child of a distant relative of the mother of the first named visa applicant. Further, it is contended that the second named visa applicant became a dependent of the first named visa applicant when the latter’s mother passed away.

29. Given that the Department did not fully assess the claims of the second named visa applicant, the Tribunal takes the view that its review pertains to the primary decision concerning whether the first named visa applicant is an ‘orphan relative’. Accordingly, the Tribunal has determined that the best course of action is for the Department, utilising its officers posted in Africa, to fully assess the claims of the second named visa applicant.

30. The Tribunal is satisfied that the second named visa applicant is sponsored by the review applicant in the visa application. Accordingly, the Tribunal finds that the second named visa applicant satisfies the requirements of cl.117.312.

    CONCLUSION

31. Given the above findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

    DECISION

32. The Tribunal remits the 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;

    ·cl.117.221 of Schedule 2 to the Regulations; and

    ·the second named visa applicant meets the requirements of cl.117.312 of Schedule 2 to the Regulations.

    K. Chapman
    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.