1706271 (Migration)

[2020] AATA 2960

1706271 (Migration) [2020] AATA 2960 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706271

MEMBER:Meena Sripathy

DATE:2 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that each of the first and second named visa applicants meet 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.

Statement made on 02 June 2020 at 5:04pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa –sibling relationship proven –DNA outcomes provided –visa applicants are the children of the review applicant’s brother–definition of ‘orphan relatives’ met –reliable witness– decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359

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

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 23 January 2017 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 9 March 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.  Both applicants were sponsored by [Mr A] (the review applicant) who claims the visa applicants are his nieces.

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 and 117.221 which requires the visa applicant to be an orphan relative of an Australian relative at time of applicant and continue to meet this requirement at time of decision. Orphan relative is defined in Regulation 1.14 and requires that the applicant be under 18 years, single, and a relative of an Australian citizen or Australian permanent resident and cannot be cared for by either parent because they are dead, permanently incapacitated or of unknown whereabouts and there is no compelling reason to believe the grant of the visa is not in their best interests.

4. The delegate refused to grant the visas because the first named visa applicant ([Ms B]) did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied [Ms B] is a relative of the sponsor or that she is an orphan as claimed and the second named visa applicant ([Ms C]) did not meet the same criteria because the delegate was not satisfied she is an orphan as claimed.

5. The sponsor applied for review of the decisions to refuse each of the visa applicants, and made a combined review application.

6. The review applicant appeared before the Tribunal by video link from Adelaide registry of the AAT on 19 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. The interpreter was present in Sydney at the location of the presiding member. The review applicant was represented in relation to the review by his registered migration agent, who participated by telephone from Melbourne.

7. The issue in the present case is whether the visa applicants are orphan relatives of the review applicant within the meaning of that term in r.1.14 of the Regulations.

8. For the following reasons, the Tribunal has concluded that the matters should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. According to information in the application form, [Ms B] was born in [year] in [City 1] South Sudan.  She presently resides at the Kakuma Refugee Camp in Kenya, having resided there since May 2014 from [South] Sudan.  She lists three parents (including step-parents), two of whom are deceased (including her father) and one whose whereabouts are unknown, and nine siblings, six in Kenya and 3 whose whereabouts are unknown.  Three of those siblings are indicated to be migrating with her. 

10. [Ms C] was born in [year] in [City 1] South Sudan.  She presently resides at the Kakuma Refugee Camp in Kenya, having resided there since May 2014 from [South] Sudan.  She lists three parents (including step-parents), two of whom are deceased (including her father) and one whose whereabouts are unknown, and nine siblings, six in Kenya and 3 whose whereabouts are unknown.  Three of those siblings are indicated to be migrating with her. 

11. Both visa applicants are sponsored by [Mr A], who is born in [year] in [City 1] South Sudan.  According to information in the sponsorship form he is an Australian citizen by grant, having arrived here on in July 2003. He refers to both visa applicants as his nieces. He names their parents as [Mr D] (father) who is deceased and [Ms E] (mother) whose whereabouts are unknown.  He names his mother, [Ms F] as the person who has parental responsibility for the visa applicants.  The sponsor states he has three daughters, a son and a nephew residing with him in Australia, and 7 other nieces and nephews not presently residing with him.  The sponsor is married to [a named person] who arrived in Australia in April 2012.

12. The visa applicants applied for the visas at the same time as their other five claimed siblings, [sibling G], [sibling H], [sibling I], [sibling J] and [sibling K], all of whom were sponsored by the same sponsor.

13. On 27 July 2016 all these visa applicants were together invited to undertake DNA testing.  The invitation specifically requested the testing to prove/disprove an uncle/nephew/niece relationship between the sponsor and [sibling G] and [sibling J] and prove/disprove full/half sibling relationships between the 7 siblings. 

14. On 16 December 2016 a DNA outcomes letter was sent to the sponsor. In summary the letter and outcomes confirmed the uncle/niece/nephew relationship between the sponsor and [sibling G] and [sibling J] respectively.  Full sibling relationships were confirmed between [sibling G] and [sibling J], [sibling H] and [sibling K] and [sibling I].  Half sibling relationships were likely between [sibling G] and [sibling H], [sibling K], [sibling I] and [Ms C].  The conclusions regarding whether [Ms B] and [Ms C] were full or half siblings were inconclusive.   

15. The delegate’s decision record indicates that, given the limited documentary evidence to support claims made in this caseload, considerable weight is given to consistent information provided in past applications and immigration records.  The files indicate reference was made to the sponsor’s past immigration files and previous sponsorships. On the basis of this evidence and the DNA results, the delegate was not satisfied [Ms B] is a relative of the sponsor or an orphan as claimed, or that [Ms C] is an orphan as claimed.

    Evidence before the Tribunal

16. The Tribunal requested from the Department the review applicant’s refugee Subclass 202 file ([number deleted]), the file relating to his sponsorship of his wife [and] nephew [Mr L] as well as the Departmental files relating to purported siblings [sibling H] and [sibling G].

17. On 11 November 2019 the Tribunal wrote to the review applicant to invite his comment on particulars of information that, subject to his comments or response, would be the reason or part of the reason for affirming the decision under review. The particulars included information contained in a Statutory Declaration he provided in [Mr L]’s Child visa application stating that his brother was killed in May 2008 and the DNA outcomes letter which suggest that [Ms C], born [after 2008] cannot be the child of his brother and [Ms B] is not the full or half sibling of any of the other purported siblings.

18. On 25 November 2019 the applicant’s representative provided a response to this invitation.  The response states, in relation to the issue of [Ms C]’s date of birth, that this was the date assigned to her on the basis of her appearance by UNHCR when she arrived at the Kakuma Refugee Camp with the review applicant’s mother and other children, and it may not be accurate.  The review applicant believes she was born in early [year] because all her siblings recall she was born while [Mr D] was still alive.

19. Regarding the DNA results, the representative submits that it is incorrect to state that the DNA outcomes indicate that the [Ms C] does not share a paternal lineage with the review applicant because their DNA was not specifically compared and it was found that there was strong support that [sibling G] and [Ms C] were half siblings. Given there was only moderately strong support that [sibling G] and [sibling H] were half siblings and yet both of them were accepted as review applicant’s relatives, the same should be said of [Ms C].

20. In respect of [Ms B] it is submitted that even if she is not the biological child of [Mr D], he had several wives and it is possible she was the child of one of his wives in which case she would be the step child of [Mr D] and the step niece of the review applicant. She lives with and has been parented by, the review applicant’s mother as have all the children.

    Hearing

21. At the hearing on 19 February 2020 the review applicant gave evidence about his current circumstances. He lives in Adelaide with his wife, three children and six children of his late brother, whom he sponsored. His wife and children came to live with him in Adelaide in June [2019]. The review applicant works [on] a part time basis. His wife works part [time]. The eldest nephew, [Mr L], works at [a workplace] and the rest of the children are all in school. The only other relative he has in Australia is a cousin, who originally sponsored him to come to Australia.

22. Overseas the applicant has his mother, the remaining children of his late brother, the visa applicants, and a distant uncle. He does not know the whereabouts of a sister since 1996.

23. The review applicant said he came to Australia in 2003 from [another country], having left Sudan in 2001. Since then he has travelled back to Sudan 3 times  - in 2007 to get married; in 2009 to take his family to Kenya and in 2013 to take his family to Juba, but due to the civil war at that time he could not go to [City 1] and stayed only one week in Juba.  His wife and children came to Australia in 2012. After his wife and children came to Australia the review applicant said he returned to take his mother from Kenya to Sudan as she was there on her own. He left her in Juba, South Sudan with her cousins.  He returned to Kenya and returned to Australia from there.

24. In 2014 he sent some money for his mother to be returned from Juba to Kenya because of the circumstances of the war. By this time she had the seven children of his brother with her (the visa applicants and the five children now with him here in Australia), as well as his uncle’s children, [sibling K and others]. In 2015 the review applicant travelled to Khatoum and to Kenya to visit the children and his mother. In 2018 and 2019 he went to Kenya to see his mother and the remaining children (the visa applicants).

25. The Tribunal asked the review applicant about the relationship of the visa applicants to him. He said they were the children of his brother, [Mr D]. He had eight children in total – [Mr L], [sibling G], [sibling H], [sibling K], [sibling J], [sibling I], [Ms B] and [Ms C]. [Mr D] was his elder brother. They lived together until [1996]. There was one sibling between them, and about 5-6 years in age difference between them. [Mr D] was in the military and he went away for work in 1996. The last time the review applicant saw him was in [2007]. When the review applicant returned to get married [Mr D] was in the military there. He never saw [Mr D] between 1996 to 2001 when he left Sudan, because he was in the military and lived in different places. He knew about his life only through what he heard from his uncle. When he saw him in 2007 [Mr D] was married to [Ms M] and had one son, [Mr L] and another child who passed away at the same time as them. The review applicant said he later came to know that his brother had three wives in total, one had left. [Ms M] was his second wife. [Ms E] is the mother of the visa applicants. The review applicant had only met [Mr L] and his sibling when he saw them in 2007. The other wife had already left with the other siblings. The review applicant said he never saw [Mr D] again after 2007. He was killed in 2008/2009. After he was killed the review applicant’s mother returned with [Mr L] and in 2009 when the review applicant came back to Sudan, his mother was with [Mr L], [his wife] and [his child] and he brought them to Kenya. The other children were with their [mother]. He did not know about their existence until 2014.

26. When asked how he came to know about them then, he said because of the outbreak of war, a cousin who lived with his brother’s wife brought the children to Juba and tried to find his mother so the children could stay with her. At this time his mother was in Juba alone, because [Mr L] had stayed in Kenya because he was waiting for his visa to come to Australia and the mother had been rejected.  It was because of this that the review applicant arranged for his mother to stay with relatives in Juba rather than staying alone in Kenya. It was only when she returned to Juba that the remaining children of his late brother joined her. 

27. In 2014 when he sent money for his mother to be taken back to Kenya (because of the war situation) she was brought there alone.  The children subsequently followed – he is not sure how but believes they may have walked - and when they arrived at Kakuma camp they registered with her household as her relatives. This was in early 2015. The Tribunal asked how he knew these children belonged to his brother? He said it is only because that is what his mother told him.  He wasn’t sure of it until they did the DNA test which he in fact requested because he wanted to be sure they were his relatives. Following the DNA test, five of the children were granted the visas and only the visa applicants were refused.

28. The Tribunal put to the review applicant for his comment that information he provided in 2011 in the visa application of his wife, he gave information that his brother was killed in 2008 but the information before the Tribunal indicates that visa applicant [Ms C] was born [after 2008] and therefore this would suggest she cannot be the child of [Mr D]. In response the applicant said that this may be explained because when the children arrived at the camp UNHCR just estimated their ages and nominated their years of birth and therefore this year is not necessarily accurate.

29. Regarding the DNA test results he said that he was only tested against two of the children, [sibling G] and [sibling J] and the rest were tested against each other.  So in fact [Ms C] and [Ms B] were never tested against him to rule out a paternal relationship.

30. The Tribunal noted that in the response to the s359A invitation, he mentioned that he would try and get further information from UNHCR, and asked if he was able to do so. He said he tried but it is very difficult, as you have to have someone go in person to request the information. When he tried to make enquiries they told him if he sends money they can change the date of birth for [Ms C]. 

31. The Tribunal put to the review applicant that in his statutory declaration in [Mr L]’s visa application he made no mention of any other siblings that he had. The review applicant said that is because, at that time, he was unaware of the existence of these children. He only came to know about them later, in 2014.

32. The Tribunal put to the applicant that another issue which arises in these cases is the whereabouts of [Ms E] and [Ms N] who he indicates may be the third wife. He said that he does not know the whereabouts of [Ms E]. He may have a photo of [Ms N], he recalls his brother sending him a photo of the family around 2005 when he had asked for some money.  He will look for this photo.

33. The Tribunal asked the applicant if he has any evidence, such as photos, of his visits to the camp in 2018 when he visited his mother. He said he does not have any photos because conditions there are very basic and there is not even electricity.

34. The Tribunal asked if he has any evidence of his contact with the visa applicants at all. He said he contacts them by phone and sends money and he can provide evidence of this. They are young, enrolled at [school].  The Tribunal asked if all the children came together. He said they did, according to his mother.

35. The Tribunal attempted several times unsuccessfully during the hearing to take oral evidence by phone from the review applicant’s mother, [Ms F], in Kenya.  It requested the applicant, through his representative to provide a statement from her after the hearing, addressing where she is living and with whom; when she commenced living with the visa applicants; how/when the children came to live with her; what she knows of their mother; whether they have the same mother; her opinion on the age order of the children of her son, [Mr D]; did she ever live with [Mr D] and if so when and with who else; what happened to [Mr D] and his wife; did he have more than one wife, if so how many and what were their names.

36. The review applicant stated that he is willing to do another DNA test if necessary.  The Tribunal said it would take this into consideration. It also asked him to provide a copy of the photo he referred to in his evidence and any evidence of his ongoing support of the visa applicants and communication with them.  

37. On 28 May 2020 the Tribunal received the following further documents in support of the applications:

    a.A response from the review applicant’s mother, [Ms F] who resides at Kakuma refugee camp in Kenya with the visa applicants, addressing the questions mentioned by the Tribunal at the hearing (see paragraph 35 above).

    b.Evidence of transfer history [between] 2014 and 2020, although this document was not annotated nor any explanation provided as to who the transfers were to or from.

    c.Mobile phone records for May 2019 to April 2020 showing records of data use. 

    No submissions were provided with the documents to explain their relevance.

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

38. 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.

39. ‘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, [Mr A], the review applicant, claims to be the relevant Australian relative.

40. For the reasons below, the Tribunal finds the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives 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 decision in respect of each of the visa applicants.

1. In reaching these conclusions, the Tribunal has had careful consideration of all of the available evidence.  Like the delegate, the Tribunal acknowledges the limited documentary evidence available to support the application and in those circumstances, more reliance must be given to other available sources of information, including historical migration applications, the oral testimony of the sponsor and DNA outcomes, to the extent that this is reliable. Unlike the delegate, the Tribunal had the benefit of a hearing with the sponsor (review applicant) where it was able to put to him for his response information that was inconsistent with the claims made.  The Tribunal found the review applicant to be an impressive witness.  His oral evidence was entirely consistent with information previously given to the Department, he responded to the Tribunal’s questioning in a frank and open manner and without hesitation. The Tribunal has no reason to doubt the truthfulness and honesty of the review applicant’s responses and accepts him as a credible witness.  Ultimately, it placed significant weight on his evidence and claims of the relationship between himself and the visa applicants. 

   Age – r.1.14(a)(i)

2. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. On the evidence before it, the Tribunal is satisfied that each of the visa applicants have not turned 18.  The UNHCR registration document indicates [Ms B] was born in [year] and [Ms C] in [year], although there is dispute about the accuracy of these dates of birth and the review applicant and evidence of his mother, claim that these dates of birth were estimates only and not necessarily accurate. The review applicant has also provided the Tribunal two photographs of the children taken in 2015 during his visit to them.  These photos clearly show seven children of a relatively young age and clearly below the age of 18 years.  Therefore, regardless of the exact accuracy of the dates of birth indicated for the visa applicants, the Tribunal is satisfied that they had not turned 18 at time of application and continue to be under the age of 18 at time of decision.  Accordingly r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.

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

3. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. On the basis of their young ages, and there being no evidence to the contrary, the Tribunal accepts the visa applicants do not have a spouse or de factor 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)

4. Regulation 1.14(a)(iii) requires the visa applicants 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.

5. The delegate concluded that [Ms B] was not a relative of the review applicant on the basis of the DNA results, and that the DNA results indicated that [Ms C] (who it was acknowledged was found to have a likelihood of being a half sibling of all the other applicants except [Ms B]) did not share a paternal lineage with the review applicant. In reaching these conclusions, the delegate appears to have placed significant weight on the DNA outcomes, and the delegate’s interpretation of these results.

6. For the following reasons the Tribunal disagrees with the delegate’s conclusions on these matters and and the delegate’s interpretation of the DNA outcomes, and recognising the limitations of the DNA information, places less emphasis on this evidence. Firstly, the Tribunal has considered, and is inclined to agree with, the representative’s submission that, contrary to the delegate’s view, the DNA outcomes for the visa applicants cannot be said to rule out a paternal linage with the review applicant because their DNA was not specifically compared. The review applicant was only specifically tested against two of the seven child applicants, being [sibling G] and [sibling J], in respect of whom it was found there was moderately strong support for a biological relationship. The remainder of the children were compared for sibling relationships only, and in respect of that there was found to be strong support that [sibling G] and [Ms C] may be half siblings; support that [Ms C] was at least half siblings with most of the others; and inconclusive as to whether [Ms B] and [Ms C] could be half siblings.  There was support for [sibling G] being full or half siblings with all of the other siblings except [Ms B]. Therefore, given that there was support for [sibling G] having a biological relationship with the review applicant, and support for a biological relationship between [sibling G] and [Ms C], the DNA outcomes evidence arguably supports a relationship between the review applicant and [Ms C].  

7. The review applicant maintained in his evidence at the hearing before the Tribunal that the visa applicants were the children of his late brother.  The Tribunal found his evidence about the circumstances in which the children came into the care of his mother to be plausible and credible, and consistent with other information before the Tribunal relating to the visa application history of his other relatives.  Specifically, the Tribunal questioned him about why he had not mentioned any of these children in the visa application of nephew [Mr L] who he sponsored for a visa in 2012 or his wife’s fiancé visa application in 2011.  The review applicant’s explanation that he did not know about the existence of these children until later, in 2014, when a relative brought them to his mother is plausible given the circumstances of the civil war going on in that period, and also in light of the evidence of the multiple wives his brother had.  It is also supported by the evidence provided by the review applicant’s mother, and the UNHCR household register.  The Tribunal also takes into consideration the review applicant’s submission that if they were not his brother’s children, he would not take on the responsibility of all of them, which given their young age, is not a minor responsibility. He was willing to undertake DNA testing as requested by the Department, and as a result of which five out of seven of the applicant children were accepted to be his relatives as claimed.  He advised the Tribunal he is still willing inf necessary to undertake further DNA testing to prove his relationship with the remaining two visa applicants.

8. The Tribunal considered this offer of the review applicant and also notes a recent news article about the reliability and accuracy of certain DNA tests conducted in previous years.[1]  The article referred to latest DNA testing methodology (single nucleotide polymorphism (SNP)) that uses up to 600,000 genetic markers, compared with only 21 in earlier tests, raising questions about the accuracy and results of past tests. The Tribunal observes that the DNA tests undertaken for the applicants referred to examining 21 sites on the DNA known as autosomal Short Tandem Repeats (STR) loci and 16 sites on the male specific Y-chromosome, suggesting that the testing undertaken may have used the outdated methodology mentioned in that article. In light of this, and the limited scope of the testing as regards these visa applicants the Tribunal gives less weight to the DNA results, though it acknowledges that it lends some support to the existence of sibling relationships among the children.

   [1] DNA disproves incest but visa still denied, 16 December 2019, The Age

9. Apart from the DNA outcomes, the Tribunal has considered the following evidence which supports the claim that the visa applicants are the children of the review applicant’s late brother and therefore ‘relatives’ of the review applicant. All seven children purportedly of the review applicant’s brother, came into the care of the review applicant’s mother at the same time, being in 2014 due to the circumstances of civil war. The review applicant’s evidence about this was consistent with and supported by the statement provided by his mother and the UNHCR Proof of registration which lists all of the children and refers to them as grandchildren of his mother.  It is also consistent with independent information before the Tribunal about the circumstances and timeline of conflict in South Sudan around this period, which also refers to the particular vulnerability of children in the context of the conflict.[2]  

   [2] DFAT Country Information Report-South Sudan paragraph 2.2-2.6 p4-5, paragraph 3.52 p17; Gridneff, I 2014, ‘Scenes of Death in South Sudan: 'No Humanity Here', Associated Press, 27 February, ABC (US) < Human Rights Watch 2014, South Sudan: War Crimes by Both Sides, 27 February <>

   The Tribunal accepts the review applicant’s explanation about when and how he came to know about these children, and it accepts his argument that if he was not confident the children belonged to his brother, he would not take responsibility for them. It acknowledges his offer to undertake further DNA testing if necessary, but considers in the circumstances, that this is not necessary.  As stated earlier, the Tribunal finds the review applicant to be a credible and honest witness. The Tribunal accepts that the review applicant’s brother had three wives, and it is possible the visa applicants are the children of different mothers. It notes the evidence of the photograph provided by the review applicant that his late brother sent him around 2005 showing two of this three wives.  The review applicant also provided photos of his visit to the refugee camp in 2015, where he and his mother are pictured with all of the children, and his evidence of his regular and ongoing financial support for the children since 2014, and continuing to the visa applicants since their visas were refused.  He continues to be in contact with them since the other children were granted their visas and came to Australia. The Tribunal accepts that the review applicant travelled to visit the visa applicants at the end of 2018, after the refusal of their visas.  He maintains that they are his brother’s children and continues to support the applications. 

10. The Tribunal also takes into consideration the circumstances of the visa applicants as young children who fled civil conflict, are not in possession of documentary evidence of their claimed relationship and are unable to obtain such documentation. The review applicant willingly underwent DNA testing upon request, but that testing was limited and potentially unreliable.  He has again indicated he is willing to undergo further DNA testing, but the Tribunal considers, given the significant costs involved, and its favourable assessment of the review applicant’s credibility, that this is not necessary or required.  On balance, having regard to all of the evidence before it in totality and its views expressed above about the DNA outcomes, the Tribunal is satisfied, that the visa applicants are the children of the review applicant’s brother and therefore they are the relatives of an Australian citizen.

11. 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)

12. 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.

13. The Tribunal accepts, on the basis of the consistent evidence of the review applicant in the history of visa applications going back to 2011, that his brother [Mr D] is deceased since around 2008. It also accepts that one of his wives, [Ms M], also died at the same time.  On the evidence before it the Tribunal accepts that he had two other wives, [Ms E] and [Ms N].  It is not clear on the evidence which of these are the mother of the visa applicants [Ms B] and [Ms C], or whether they had the same or different mothers.  The evidence before the Tribunal is that the children have been in the care of the review applicant’s mother since 2014, because their mother’s whereabouts are unknown or she is dead. The review applicant’s mother’s statement is consistent with his evidence. The UNHCR Proof of Registration document also supports that [Ms F] is the guardian of these children.  There is no other evidence to indicate the mother(s) is or are around or are able to care for the visa applicants.  The review applicant has been providing financial support and has maintained contact with the visa applicants regularly and states he has no knowledge of the whereabouts of their mother(s).  On balance, on the evidence before it, the Tribunal accepts that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

14. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

15. 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 visa applicant. The visa applicants came into the care of the review applicant’s mother as a result of the civil war outbreak in the area of South Sudan where they were living in 2014.  DFAT’s assesses that children in South Sudan are particularly vulnerable and face a high risk of official and societal discrimination and violence, including sexual violence, particularly in conflict affected areas.  The children are currently living in Kakuma Refugee Camp in Kenya which since 2014 has well surpassed its capacity[3] with current population cited as 194,000 refugees[4], sources indicated conditions in the camp are dire, with no well established structures, fragile human rights conditions and particular vulnerabilities for girls and women of rape and sexual assault[5] and in the current circumstances of the coronavirus pandemic all the more so.[6]  The Tribunal is satisfied, having regard to the present living circumstances of the visa applicants, that there is no compelling reason to believe the grant of a visa would not be in their best interests. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

    [3] see also World Food Programme 2014, South Sudan Crisis Cross-Border Impact,19 February < >; UNHCR 2014, Kakuma Camp Update, 19 February <

    [4] See eg. UNHCR 2014, 2014 UNHCR country operations profile – Kenya < >

    Given the findings above, cl.117.211 is met in respect of each of the visa applicants.

16. The Tribunal finds that the visa applicant continues to satisfy the criterion in cl.117.211.  It follows that cl.117.221 is met.

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

    DECISION

18. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that each of the first and second named visa applicants meet 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.

    Meena Sripathy
    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.