1718923 (Migration)

[2019] AATA 3873

1718923 (Migration) [2019] AATA 3873 (16 April 2019)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718923

MEMBER:Kira Raif

DATE OF DECISION:  16 April 2019

DATE CORRIGENDUM

SIGNED:27 June 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

At paragraph 23, the following decision should read:

The Tribunal set aside the application 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 the Schedule 2 to the Regulations; and

·cl. 117.221 of Schedule 2 to the Regulations

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718923

MEMBER:Kira Raif

DATE:16 April 2019

PLACE OF DECISION:  Sydney

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; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 16 April 2019 at 2:16pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visas – Subclass 117 (Orphan Relative) – orphan relatives of the sponsor – evidence of ages of the applicants – whereabouts of the visa applicants’ parents – providing ongoing support to the children – willingness to undergo DNA testing – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.211, 117.221, rr 1.03, 1.14

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 31 July 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 are nationals of Eritrea born in May 2000 and June 2002 respectively. They applied for the visas on 18 May 2016. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 9 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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.

5. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. 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.

7. ‘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. 

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

8. The review applicant provided to the Tribunal copies of the primary decision records. The visa applicants claim to be nephews of the sponsor. They have not provided birth certificates to confirm the relationship with the sponsor but the visa applicants presented baptism certificates. The delegate notes that the sponsor declared the visa applicants’ father as his brother in his own migration application.

9. The primary decision record indicates that [the first visa applicant] was interviewed in November 2016 and stated that the whereabouts of their parents were unknown. [He] stated that the father was taken away from their home by Eritrean security forced in October 2014 and failed to return to national service. Two weeks after their father’s disappearance, their mother left them to go into hiding upon advice of a local administrator. The mother took the younger siblings but not the visa applicants. The visa applicants fled to Sudan. The visa applicants provided a statement with their application outlining these circumstances. The sponsor also provided a statement indicating that he had approached the Red Cross to locate his brother but they were not able to conduct enquiries in Eritrea.

10. The delegate concluded that there was no persuasive evidence that the visa applicants’ parents are missing or of unknown whereabouts. The delegate found it implausible that their mother would leave the visa applicants, who were [ages] years old at the time, behind while she went into hiding. The delegate also noted that the visa applicants failed to mention the other siblings in their application forms. The delegate noted there was no independent evidence to support the claim that the parents are missing. The delegate wrote to the visa applicants inviting them to provide additional evidence relating to their parents, as well as their birth certificates. They provided residence of their registration as refugees with UNHCR but no other evidence, stating that it cannot be obtained. As a result, the delegate was not satisfied that the parents are deceased or that their whereabouts are missing.

11. The review applicant provided to the Tribunal a statement from [a named person] who confirms the relationship between the visa applicants and the sponsor and the visa applicants’ orphan relative status. The review applicant also provided a statement from [Ms B] who confirms she has been taking care of the visa applicants for more than two years and is their ‘guardian mother’. She confirms the biological relationship between the visa applicants and the sponsor. There are several other statements from third parties attesting to the relationship between the visa applicants and the sponsor. There is also evidence of the sponsor providing financial support to the visa applicants. The review applicant presented a statement from a priest at Khartoum who attests that the children live with their guardian mother and refers to a relationship between the visa applicants and the sponsor.

12. In his correspondence to the Tribunal of 20 November 2017 the review applicant submits that the delegate ”engaged in jurisdictional error by ignoring / failing to give due consideration to credible evidence put before it in support of the visa application”. The review applicant refers to the grounds for application and sets out the particulars. (The Tribunal is mindful that the review applicant claims to be unrepresented in this review).

13. The review applicant addressed the delegate’s concerns. The review applicant states that the family fled their home as refugees and had no opportunity to gather documents such as birth records. The Tribunal accepts that evidence, however, it does not assist the visa applicants to establish their relationship with the sponsor. While there may be reasons why birth certificates were not available in the past, it is still necessary for the visa applicants to satisfy the decision-maker that they meet the requirements for the grant of the visa.

14. The review applicant states that the visa applicants did not claim their mother left the family home but she was taken away by government security forces at gun point. The review applicant explains that it is not possible to obtain third party evidence about the parents being taken way or missing as there would be reprisals against anyone revealing that information. The review applicant outlines the arrangement with the ‘guardian mother’. The review applicant states that the issue of the parents is poltcially sensitive and for that reason, it is not possible to obtain court records or documents concerning the parents’ whereabouts or the permission to remove the children from their country.

15. The review applicant told the Tribunal that politics is involved. The children’s father used to be a soldier and when he returned home for leave, other soldiers came to their house and the father was beaten and taken away in October 2014. After two weeks they came for the mother. She escaped with the younger children and left the older children. They made agreement to meet but the children had not seen their mother again. The children have not heard about their parents since that time and have themselves fled from the government. The review applicant said that they had made inquiries with the Red Cross but the parents could not be located. The Tribunal notes that the statement from the Red Cross indicates that they cannot conduct inquiries, not that the parents cannot be located. The review applicant states that due to the political situation, the Red Cross cannot conduct inquiries. He states that because he and the visa applicants are refugees, they also cannot make inquiries. Following the hearing, the review applicant provided to the Tribunal further evidence of having contacted Red Cross with the intention of locating the visa applicants’ parents. The Tribunal is prepared to accept that the Red Cross has indicated their inability to conduct a search for the parents.

16. The review applicant refers to several statements, including the statements from the church and from the person who is looking after the children. Normally, the Tribunal may not consider such evidence adequate. However, the Tribunal is satisfied in this case that the review applicant has taken all steps available to him to locate the visa applicants’ parents. The Tribunal is satisfied that he had approached the Red Cross on several occasions over the years and that the Red Cross has been unable to assist the review applicant in locating the parents. The Tribunal also accepts that due to the present unsafe situation in the country, it may not be possible or practicable to undertake other inquiries.

17. The Tribunal notes there are statements from third parties confirming the review applicant’s evidence. There are statements from the local church and other witnesses who confirm the care arrangements for the children and the fact that their parents are not available to care for the children. In the circumstances, the Tribunal has decided to give the parties the benefit of the doubt. The Tribunal accepts on balance, and having regard to the presented evidence, that the whereabouts of the visa applicants’ parents is unknown. The Tribunal finds that the visa applicant cannot be cared for by their parents because each of them is dead or of unknown whereabouts. The visa applicants meet r. 1.14(b).

18. The visa applicants were born in [years] respectively. As the application for the visa was made in 2016, the Tribunal finds that they were under the age of 18 when the application was made. There is nothing to indicate that the visa applicants had spouses or de facto partners.

19. The Tribunal invited the review applicant and the visa applicant to undertake DNA testing to confirm the relationship. The review applicant had made arrangements, and the payment, for the testing but on 15 April 2019 the Department advised the Tribunal that due to the unsafe situation in the applicants’ home country, the samples cannot be collected. Thus, the DNA testing was not available. Nevertheless, the Tribunal acknowledges the review applicant’s evidence of his relationship with the children. The Tribunal accepts that he has been providing ongoing support to the children over a number of years. There are various statements from third parties attesting to their relationship. The Tribunal also notes the review applicant’s willingness to confirm the relationship through the DNA testing. The Tribunal places significant weight on the fact that the review applicant identified the children’s father as his brother on his own visa application and the evidence of the relationship has been consistent. On balance, the Tribunal accepts that the visa applicants are the relatives of the sponsor. They meet r. 1.14(a).

20. The review applicant told the Tribunal that he has been supporting the children financially. If the children were to travel to Australia, he would continue to support them financially and he has been working long hours to be able to support them. The children would live with his family, otherwise his sister can provide accommodation to the children. The Tribunal accepts that the review applicant has been providing financial support to the children and that he is willing to continue to do that. The Tribunal is satisfied that the review applicant will provide emotional, physical and financial support to the children. He told the Tribunal he has not had any problems with the law. The Tribunal finds that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicants. The Tribunal finds that the visa applicants meet r. 1.14(c).

21. The Tribunal finds that the visa applicant were orphan relatives of the sponsor at the time of the application and at present. Accordingly, cl.117.211(b) is met, and continues to be met at the time of the decision. The visa applicants meet cl. 117.221.

    Conclusion

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

    decision

23. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Kira Raif
    Senior Member