1704843 (Migration)

[2018] AATA 898

1704843 (Migration) [2018] AATA 898 (26 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704843

MEMBER:Adrienne Millbank

DATE:26 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 26 February 2018 at 4:14pm

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Sponsor is an aunt of the visa applicant – Sponsor financially supported the applicant – No evidence of parents' deaths provided – Evidence evasive and unconvincing

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211, 117.221

CASES

EC v MIMIA [2004] FCA 978

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 [in] February 2017 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 [in] January 2015. 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. This requires that the applicant is an orphan relative of an Australian relative of the applicant; or is not an orphan relative only because the applicant has been adopted by the Australian relative. ‘Orphan relative’, for the purpose of the visa application, is defined in Regulation 1.14, which is attached to this decision. It includes, at 1.14(b) that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

4. The delegate refused to grant the visa because the applicant did not meet cl.117.211(b) of Schedule 2 to the Regulations because he was not satisfied that her parents were both dead or of unknown whereabouts. The delegate in the decision record noted that during checks in Kampala, with the applicant’s primary school, it was assessed that the applicant had provided misleading information about her father: she was listed as still having a father, with a name completely different from the name provided in the visa application. The delegate took into consideration the explanation provided that her enrolment had been done by a former guardian who was not a relative and no longer caring for her. The delegate noted however that the school registration forms had been signed by another person, who described herself as a cousin of the applicant, and whose name was listed as the school’s contact person.

5. The review applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant in Uganda. The Tribunal hearing was conducted with the assistance of an interpreter in the Acholi and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The parties claim is that the applicant’s parents died in 2008, 2009 or 2010, during conflict in Sudan civil war, and that the applicant was cared for by her maternal grandmother, the sponsor’s mother, until the grandmother died in April 2014. The applicant then moved in with neighbours, but fled, [to] a refugee camp near Kampala, in Uganda, where she has since lived.

9. The sponsor first arrived in Australia on [date] January 2004, on a Refugee [visa]. She came with her then de facto partner and [children]. She has subsequently had [more] children; [from] the partner who accompanied her to Australia, and [from] a subsequent relationship.  She obtained Australian citizenship by grant in 2009.

10. The sponsor claims that she has sent money to support the applicant, in the order of $80 a week, on an irregular basis, since 2013, when her mother, the applicant’s grandmother, phoned her from Sudan and asked for her assistance.

11. At the time of decision, the sponsor was living with her [children], [and] has recently taken up a [position] as a [occupation].  She was on Centrelink benefits, while studying for a certificate in [a certain industry], but advised at hearing that she has recently obtained [employment] as a [occupation].

12. The issue in the present case is whether the applicant is the orphan relative of the sponsor.

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

13. 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.

14. ‘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 applicant’s sponsor, who migrated to Australia in 2004, claims to be the aunt of the applicant.

15. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met, and continues not to be met, at the time of decision.

    Relative – r.1.14(a)(iii)

16. 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.

17. A copy of the applicant’s application to migrate to Australia under the offshore refugee resettlement program was provided, showing that the sponsor at this time, listed the applicant’s mother as her oldest sibling. A copy of the sponsor’s Australian Citizenship Certificate was also provided. The Tribunal accepts, on the evidence, that the sponsor is an aunt of the applicant, and that the sponsor is an Australian citizen.

18. 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)

19. 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.

20. As noted above, the parties claim that the applicant’s parents died in 2008, 2009 or 2010. At hearing, they claimed that they could not recall the exact year—the sponsor stated that it was around 2010, and the applicant claimed that she was [age] years old, which would make it 2008. They claim that the applicant’s father died after stepping on a land mine, and that the applicant’s mother died soon after when she was caught in cross-fire. No independent evidence was provided that the applicant’s parents are dead, as claimed. When the Tribunal asked the parties why no death certificate or burial permit had been obtained, the sponsor stated that such certificates were impossible to obtain from Sudanese authorities.

21. The Tribunal pointed out that a death certificate and burial permit had been provided for the applicant’s grandmother, and asked why similar paperwork had not been required or provided for the applicant’s parents. The sponsor stated that neither she nor her mother nor the applicant has ever sought to obtain death certificates for the applicant’s parents. She stated that South Sudan remained a dangerous place, and for this reason it is not and never has been possible to obtain such official documents. She stated that her mother died of natural causes, namely, diarrhoea and malaria, rather than war-related causes, and this is why documents were issued in her case. 

22. No independent evidence was provided in support of the claim that it is not possible to obtain death certificates for people who died of war-related causes in 2008, 2009 or 2010. The Department of Foreign Affairs and Trade (DFAT) Country Information Report for South Sudan of 5 October 2016, advises only that death certificates in South Sudan follow no specific format, and are ‘extremely unreliable’. The DFAT Country Information Report for Sudan of 22 April 2016, advises that while the registration of deaths is compulsory in Sudan, it is unlikely that all deaths are registered. It advises further that ‘in cases where a death has not been registered, DFAT understands that individuals may be able to apply to register the death at a later date and obtain appropriate documentation confirming this’. Based on this advice, the Tribunal is not satisfied that it has never been possible for the applicant or the sponsor to obtain documentary proof of the death of the applicant’s parents.

23. The Tribunal asked the sponsor why a father of a different name was listed in the applicant’s personal information held by her boarding school. The sponsor stated that she had sought the assistance of a contact in Kampala to enrol her niece in the school, and that this person must have thought a father was required for enrolment purposes, and so made up a name. The applicant, in response to the same question, stated that the teachers at the school made the mistake. When the Tribunal asked why a person who claimed to be the cousin of the applicant filled in the school registration paperwork and was listed as the school’s contact person, the sponsor stated that terms like ‘cousin’ or ‘grandmother’ are used as terms of affection by people who are not necessarily related, in Africa.

24. The Tribunal asked the applicant to describe the circumstances of her parents’ deaths. She stated several times that her father died after stepping on a land mine, and her mother died soon after when she was caught in cross-fire. She stated that she learned of their deaths when her grandmother, with whom she lived, told her. In response to further questions, she stated that: she never asked her grandmother about her parents’ deaths; didn’t know if they were taken to hospital; didn’t know where they were buried; didn’t know where or whether funerals were held; and didn’t know whether any of her aunts and uncles attended. She claimed that: she was only [age] years old at the time her parents died; had not thought to inquire of her grandmother about such things as funerals in subsequent years; has not thought of obtaining death certificates for her parents, now that she has turned 18; and that she has no-one to care for her except the sponsor, in Australia.   

25. When the Tribunal inquired of the sponsor what sort of support and contact the applicant has had with her [other] maternal aunts and uncles, listed by the sponsor as her siblings when she applied to migrate to Australia, the sponsor claimed that all her siblings were dead. No evidence was provided in support of this claim. The sponsor stated that she had no particular information about their deaths, apart from that her younger sister died in 2015. 

26. When the applicant was questioned regarding her other aunts and uncles, including from her father’s side, she claimed that she has no relatives apart from her aunt in Australia who can take care of her, and that she didn’t know anything about her aunts and uncles.

27. The sponsor acknowledged that she lived with her [siblings] in the family home in Jubal before leaving for Uganda, but claimed that she lost touch with all of them when they dispersed during the war.

28. When the Tribunal asked the sponsor how she knew all of her siblings were dead, she stated that they would have got in touch with her if they were still alive. When the Tribunal asked the parties whether the applicant, or one of her helpers and guardians, or the sponsor herself, had listed the sponsor’s siblings, and the sponsor’s brother-in-law’s siblings, as missing, with refugee camps in Kenya and Uganda, or with other agencies who trace people separated through the conflict in Sudan, the parties stated that they had not.

29. When the Tribunal asked the sponsor again for more details about the deaths of the applicant’s parents, including burial or funeral arrangements, the sponsor stated that she thought that people might have got together following the deaths of her sister and brother-in-law, but that she didn’t know anything about it. She claimed she had never asked her mother, the applicant’s grandmother, about her sister’s funeral or burial. She confirmed that she has not returned to Sudan or Uganda since leaving for Australia in January 2004. She stated that she left Sudan for Uganda some years before applying to come to Australia, but couldn’t remember when this was.

30. When the Tribunal pointed out to the sponsor that the applicant claimed to be living with her grandmother, not her parents, at the time her parents died, as claimed by the sponsor, the sponsor acknowledged that the applicant was in fact living with her maternal grandmother, not her parents, at this time. She stated that this was out of preference, and that the applicant’s parents, her grandmother, and her grandfather, all lived in separate houses which were within several blocks from each other. She stated that the applicant didn’t move in with her grandfather after her grandmother died because he was too old to care for her, so she moved in with some neighbours. As noted above, the parties claim that the applicant fled to Uganda, by herself, after obtaining her identity [papers].

31. The Tribunal questioned the sponsor regarding the many variations in spelling of the applicant’s name: on documents from her schools; UNHCR registration documents; national identity card; age attestation certificate; and her visa application. The sponsor explained the difficulty of transcribing African names into English because of the many different dialects and naming traditions. The Tribunal accepts the sponsor’s explanation regarding the various different names attributed to the applicant, and, as noted, accepts that she is the aunt of the applicant. The Tribunal accepts further, from the evidence provided of money transfers, that the sponsor has sent money to her contacts in Uganda for the support of the applicant, and, possibly, other family members.

32. For the reason that the sponsor and the applicant were evasive and unconvincing in their response to questions regarding the applicant’s other aunts and uncles, the Tribunal is not satisfied that all of them are dead. Nor is the Tribunal satisfied, because no evidence was provided, and the claims and responses were evasive and unconvincing, that the applicant’s mother and father are both dead.

33. Accordingly, the Tribunal finds that r.1.14(b) was not met at the time of application and continues not to be met at the time of decision.

    Adoption by the Australian relative–cl.117.211(b)

34. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

35. The visa applicant was not an orphan relative at the time of application and/or time of decision only because of adoption by an Australian relative. Accordingly, cl.117.211(b) is not met, and continues not to be met at the time of decision.

36. Given the findings above, cl.117.211 is not met.

37. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, and this is not only because the visa applicant has turned 18. It follows that cl.117.221 is not met.

38. 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

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

    Adrienne Millbank
    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.