1717412 (Migration)

[2018] AATA 3353

1717412 (Migration) [2018] AATA 3353 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717412

MEMBER:Ann Duffield

DATE:2 July 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 02 July 2018 at 12:56pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Whether the visa applicant is a ‘relative’ of the sponsor – DNA testing show that the visa applicant is unlikely to be related to the sponsor – Whether the visa applicant’s parents are dead, permanently incapacitated or of unknown whereabouts – Insufficient evidence before the Tribunal – Inconsistent evidence provided – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.111, 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 28 June 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 on 28 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

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 that she could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts or that the Australian sponsor is a relative of the applicant as required in Regulation 1.14.

5. The review applicant appeared before the Tribunal on 26 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent who also attended the hearing and contributed to the proceedings.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

9. 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.

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 sponsor claims to be the biological Aunt of the applicant.

11. 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)

12. 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.

13. The sponsor claims to be the biological aunt of the applicant. She claims that the applicant is the daughter of her [brother] who was killed, along with his wife (the applicant’s mother) in floods in February 2014.

14. The delegate sought DNA tests in an attempt to confirm the relationship between the applicant and the sponsor. Those tests results showed that the relationship between the applicant and the sponsor were inconclusive but that they were “unlikely to be related”. 

15. The Tribunal put this information to the sponsor at the hearing and she claimed that she only knows that the applicant is her brother’s daughter. She claims that there is no other truth or information available to her except that. She said that if they are not related, then the secret is with the applicant’s parents when they passed away. There is no record of the death of the applicant’s parents.

16. The sponsor, through her representative, has sought to rely on the “inconclusive” nature of the DNA results. The Tribunal notes that the results showed that the “relationship” between the applicant and the sponsor was “inconclusive” but that they were “unlikely to be related”.

17. The Tribunal is therefore not satisfied that the sponsor is a relative of the applicant within the meaning of the Migration Act.

18. Accordingly, r.1.14(a)(iii) was not met at the time of application and continues not 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. There is no record of the deaths of the applicant’s parents. They were allegedly killed in floods along with thousands of others in February 2014. The Tribunal accepts that in such circumstances as mass casualties in natural disasters that it may be the case that records are not kept. However the Tribunal does not accept that there would not be some other kind of supporting evidence, aside from the statements of the parties’ themselves, that the applicant’s parents were deceased, even taking into account the volatile political situation at the time.

21. The sponsor has provided some evidence that she provides financial support to the applicant through the applicant’s carer, [Mr A], who is apparently a friend of the family. Asked why she was providing support to both [Mr A] and her husband to live separately, rather than support her husband and the applicant to enable them to live together, the sponsor said that her husband was not settled and was spending nights “here and there”.  This is inconsistent with her earlier evidence that she paid her husband’s rent and other expenses.

22. In the Tribunal’s mind, it would seem more logical, if the applicant was indeed an orphan who was to come and live with the sponsor and her husband, then she would be living with the sponsor’s husband and be supported by her until such time as they could all travel to Australia together. The fact that they are not does not lend any weight to the sponsor’s claim that the applicant is related to her.

23. Given the weight of the DNA and other evidence against her claims, the Tribunal is not satisfied that the applicant is not in the care of either one of her parents because they are deceased.

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

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

    CONCLUSION

26. 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

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

    Ann Duffield
    Senior 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.