1718238 (Migration)

[2019] AATA 3874

1718238 (Migration) [2019] AATA 3874 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718238

DIBP REFERENCE(S):  2015075342

MEMBER:Kate Millar

DATE:22 May 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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 22 May 2019 at 10:08am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – evidence parents deceased provided – orphan relative of Australian relative – positive DNA test results provided – biological niece – health criteria – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211, 117.221, 117.225, PIC 4005

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. Miss [A] is a citizen of Burundi.  She applied for an orphan relative visa to come to Australia and be with her paternal uncle, and applied for this visa on 26 June 2015. 

2. [Ms A]’s visa application was refused under s.65 of the Migration Act 1958 (the Act) because a delegate of the Minister for Home Affairs was not satisfied that she met the requirement that she is a relative of Mr [B], or the requirement that both of her parents were deceased, permanently incapacitated or of unknown whereabouts. 

3. Mr [B] has applied for a review of this decision, and appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. He was represented by his registered migration agent.  The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.

4. While Mr [B] refers to the visa applicant as [Ms AA], as [Ms A] has been used on the visa application form and the application for review, the Tribunal will refer to her as [Ms A].   

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

6. Mr [B] left Burundi in 1994 when there was a state of civil war.  He said he had [a number of siblings].  His father had a [Business 1] and the family had a [Business 2]. 

7. He was boarding at University when his family was killed in a targeted attack. His family lived [near] where he was studying.  At this time he said [a number of his siblings were] killed, but [Ms A]’s father survived. 

8. Mr [B] said after this attack he ran away and became a refugee in [Country 1].  He asked for resettlement and arrived in Australia [in] August 2005.  He said that from the time he arrived he attempted to find his brother through word of mouth and through the [Organisation 1].

9. In January 2006 he discovered his brother was living in Burundi, but had difficulty contacting him as his brother moved constantly because he was targeted.  Mr [B] sent his brother money through friends, and would talk to him by phone.

10. At this time, his brother changed his name [to] try and associate with a Hutu family.  Mr [B] said his brother was also known as [a] name they used for him at home.  His brother had married and had two children, [Ms A] and [Mr C]. 

11. Mr [B] says in 2014 his brother died after he was attacked, and his brother’s wife died [months] after that from injuries she suffered during the attack.  He discovered his brother had died through the person he used to send money to his brother.

12. Mr [B] sent [Mr C] and [Ms A] to [Country 2] to the [Named] Refugee Camp.  He is trying to support them at the camp, but they are not safe.

13. Mr [B]’s account of the attack on his family is generally consistent with the 2004 interview report for humanitarian entry which records that Mr [B] stated there were [a number of] children in total and Mr [B] had [a number of siblings].  It is reported he said [a number of his siblings] were killed and he does not know the whereabouts of his remaining brother.  While the number of siblings in each report is the same, there is consistent information about one brother escaping and Mr [B] not knowing his whereabouts. 

14. The UNHCR resettlement Registration Form records that his entire family was killed in this attack.  This is not consistent with the intake interview or his oral evidence at hearing.  In light of the support for the relationship between Mr [B] and [Ms A] provided by the DNA test results, the Tribunal is not satisfied this is accurate. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. [Ms A] applied for the visa on 26 June 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.

16. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria include cl.117.211 which requires the applicant to be an orphan relative, as defined by r.1.14 of the Regulations, of an Australian relative or is not an orphan relative only because the applicant has been adopted by the Australian relative.

17. To meet the requirement in cl.117.211 that she is the orphan relative of an Australian relative, [Ms A] must be:

    ·Related to Mr [B]; and

    ·Not have turned 18 years of age; and

    ·Not have a spouse or defacto partner; and

    ·Cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    ·There must be no compelling reason to believe the grant of the visa would not be in the best interests of the applicant.

18. The issues in the present case are whether [Ms A] is related to Mr [B] and whether both of her parents are deceased, permanently incapacitated or of unknown whereabouts.

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

19. 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.

20. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ includes a relative of the visa applicant who is an Australian citizen: cl.117.111. A ‘relative’ includes an uncle: r.1.03. 

21. In the present case Mr [B], is the relevant Australian relative, and he is an Australian citizen. 

    Age – r.1.14(a)(i)

22. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

23. In this visa application, [Ms A]’s date of birth is listed as [date], which makes her [specified] years of age at the date of application. 

24. In support of this date of birth a translation of an extract of a birth certificate from the Republic of Burundi was provided.  This was issued [in] November 2014, and states [Ms A] was born [date].  It states her parents are [Mr D] and [Ms E].  A Profiling for New Arrivals in [the refugee camp] was also provide in [Country 2] letterhead that records that she she was [age] [in] 2015.

25. The information before the Tribunal is that [Ms A] was [specified] years of age when she applied for the visa, and r.1.14(a)(i) was met at the time of application.

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

26. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Mr [B] states she does not.  There is no information to show [Ms A] has a spouse or de facto partner, and on balance the Tribunal has found she was 14 years of age at the time of the visa application.  Accordingly, r.1.14(a)(ii) was met at the time of application. There is nothing further to indicate she has a spouse or defacto partner at the time of this decision. 

    Relative – r.1.14(a)(iii)

27. 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.

28. Mr [B] is an Australia citizen.  He says he is the uncle of [Ms A].  The term “relative” is defined in r.1.03 and this includes the uncle of a person. 

29. Mr [B] provided DNA test results showing there is moderate support for the proposition that he is the biological uncle of [Ms A].  The likelihood ratio for this test ranges from very strong and strong, to good, fair/moderate, weak/limited, inconclusive and unlikely.

30. The Department submitted in response to this test that it found the relationship between Mr [B] and [Ms A] to be genuine.

31. As the Department does not dispute there is an uncle/niece relationship, and there is moderate DNA support for this relationship, the Tribunal finds [Ms A] is the relative of an Australian relative, and r.1.14(a)(iii) is met.

    No parental care – r.1.14(b)

32. 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.  In this case, the application is made on the basis that both of [Ms A]’s parents are deceased.

33. A translated copy of a death certificate issued [in] November 2014 in Bjumbura stating [Ms E] died [in] 2014 was provided.  Mr [B] says this is [Ms A]’s mother.

34. Mr [B] said [Ms A]’s mother died as a result of injuries following an attack on the household in which [Ms A]’s father was killed.  He said the children hid, but witnessed the attack.  He said their mother was taken to hospital and treated at hospital for [months] in [Suburb 1].  He said he sent money for her treatment.  Her injuries were in her [specific area].  After [a number of] months she died, and he thought this was due to the pain.  The children lived with a neighbour.  He said he did not have hospital records for the treatment of their mother, but does have records of him sending money for her treatment.  No further records were provided either form the hospital or of sending money.  Mr [B] sent other evidence to support that money is provide to family members in Burundi through mutual acquaintances or relatives of other people who live in Australia. 

35. A translated copy of a death certificate was provided for [Mr D], who died on [in] 2014.  Mr [B] says this is [Ms A]’s father.  The UNHCR Resettlement registration form for Mr [B] dated [in] December 2004 records Mr [B]’s brother’s name as [Name 1].  Mr [B] says his brother was also known as [Name 2].

36. Mr [B] says his brother changed his name to [Mr D] due to safety issues, because if a Tutsi person is living in a Hutu suburb they could be killed.  He said one way to be safer is to change your name to associate yourself with another Hutu family in the region.  He said this is common, and people adopt a new name when they move to the area. 

37. The death certificate lists the parents of [Mr D] as [his father] and [his mother].  In the UNHCR Resettlement registration form, Mr [B]’s parents are named as [different names].  Mr [B] was asked why the parents of [Mr D], as named in the death certificate, are different to his parent’s names.  He said there would be little point in his brother changing his name if he did not also change the name of his parents, as otherwise he would be identified by the names of his parents, and this is the reason the names are different.

38. On being asked how I would know if the death certificates provided were for his brother and his sister-in-law, when they have changed both their names and the names of [Mr D]’s parents, he said the name is not important as  people change their names all of the time.  He said he knew his brother had died as he was advised by word-of –mouth and was convinced this was the case because the children were taken and supported by another person.  He said his brother was attacked in [Suburb 1] at home.  He said people came at night and he was beaten until he died.  He said [Mr C] obtained the death certificates, and travelled to Burundi to obtain the death certificates.

39. Accompanying the application was a handwritten statement which says it is from [Named] Police Post relating to a traffic accident involving [Mr C]. This statement reports [Mr C] stated his parents were killed in Burundi in January 2015.  It states he was knocked over [in] [Country 2], and thought the person [was] involved in the attack on his parents.

40. The Department requested verification of the police report.  On a representative [attending] the [Named] Police Post, it was reported that [Mr C] did report this matter to the police, but that no investigation was undertaken as he did not provide additional information to assist with the investigation or return to file a full statement or to be provide with a police form to go to the hospital for a health check.  The Department officer concluded there were serious concerns about the veracity of this report and whether it was reported to bolster the claims of the death of the applicant’s parents.  There is no additional information in support of this conclusion. 

41. The visa applicants were invited by the Department to explain the discrepancy between the date of death in the police report, which states their parents died in January 2015 and their death certificate, which list the dates of their death in [2014]. In response, Mr [B] said [Mr C] was traumatised by witnessing the death of his parents and this affects his memory, and the death certificates contain the correct date.

42. In support of the death of the parents, Mr [B] provided receipts for money transfers to show he financially supports [Ms A] and [Mr C].  These include transfers to [Mr F], and he states this is a good Samaritan who is helping to care for [Mr C] and [Ms A]. 

43. [Mr F] is named as Mr [B]’s brother-in-law in the UNHCR Resettlement Registration Form.  The money transfers to [Mr F] are from Mr [B]’s wife.  In a written submission after the hearing, Mr [B] said he only sends one transaction for various family members because of the cost of the money transfer.  He sends a text to [Mr C] or [Mr F] to explain how the money should be dispersed, with an allocation for [Mr C], one for [Ms A], one for [Mr F]’s family and one for [Mr F]’s mother.  He said all the family live in the same compound and the money is dispersed amongst them.

44. A statement from [named person] states it is common for Burundian people in Australia to transfer money through family arrangements and also it is common for Burundians to change their names for security reasons. 

45. The profiling form for new arrivals in [the refugee camp] for  [Country 2] records [Mr C]’s parents as deceased.  This form is dated [in] March 2015.  There is a letter from the [Catholic] Parish stating [Ms A] is an orphan, and a letter which states it is from [an official] of ]the refugee] Camp stating [Ms A] is an orphan.

46. The Tribunal concludes from this information that [Ms A] is known as an orphan in the  [Refugee] Camp, and her parents were recorded as deceased when she arrived at the camp. 

47. There is information to show that money is sent to Mr [B]’s brother-in-law, and he says [Ms A] lives in the same compound as his wife’s family which would not be the case if her parent were alive.       

48. There are troubling aspects to this matter, as the death certificates provided are not the same name for Mr [B]’s brother as contained in Mr [B]’s visa application.  However, the Tribunal accepts that it in some circumstances it may be necessary for security purposes for a person living in Burundi to change his or her name. The Tribunal accepts that the security situation for people living Burundi at this time was poor.[1]    While the difference in the date of death reported by [Mr C] raises valid concerns, in light of the recognition of [Ms A] as an orphan in the camp and the oral evidence of Mr [B], the Tribunal accepts Mr [B]’s explanation that circumstances of the death of their parents and resulting trauma to [Mr C], as well the lack of emphasis on dates in African culture mean that this date was either given or recorded in error. 

    [1] See, for example >

    Having considered the information before it, the Tribunal finds that at the time of the application, and therefore at the time of this decision, [Ms A]’s parents were both deceased. 

49. Accordingly, r.1.14(b) is met at the time of application and the time of decision.

    Best interests – r.1.14(c)

50. 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.

51. There is nothing to indicate that there is a compelling reason to believe the grant of the visa would not be in [Ms A]’s best interests and r.1.14(c) was met at the time of application and continues to be met at the time of decision.

52. Given the findings above, cl.117.211 is met.

53. [Ms A] has recently turned 18 years of age.  The Tribunal finds that she does not continue to satisfy the criterion in cl.117.211, but only because the visa applicant has turned 18. It follows that cl.117.221 is met.

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

    OTHER MATTERS

55. Mr [B] said that [Mr C]’s visa application was refused because he had a medical test that showed he had [a medical condition] and he was refused the visa based on this information.

56. Mr [B] was advised to speak to his representative about the effect this may have on [Ms A]’s application as  cl.117.225 requires that each member of the family who is not a an applicant for the visa, as well as each member who is an applicant for the visa satisfies PIC 4005.  The exception that it would not be reasonable to require a health examination would not apply in this case as [Mr C] has, according to Mr [B], had a health assessment. 

57. If [Mr C] does not meet the health criteria in PIC4005, [Ms A] may not meet cl.117.225 and if she does not this application will be futile.

58. Mr [B] did not make any further submissions on this issue.  As [Mr C]’s application is not before the Tribunal, it cannot make any further findings on this issue.  However, it should be observed that a successful outcome for this application does not mean the visa will be granted given the concerns about whether [Ms A] meets the health criteria. 

    DECISION

59. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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.

    Kate Millar
    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.