1720832 (Migration)

[2018] AATA 5337

1720832 (Migration) [2018] AATA 5337 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720832

MEMBER:Margie Bourke

DATE:29 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 29 October 2018 at 10:07am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – father had passed away – permanent incapacity of mother – non-genuine medical reports – death of mother after visa application – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 117.111, 117.221; rr 1.03, 1.14

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 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 . 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 and cl.117.221 which require the visa applicants meet the definition of orphan relative in r.1.14 at the time of application and at the time of decision.

4. The delegate refused to grant the visas because the four visa applicants did not meet cl.117.211of Schedule 2 to the Regulations the delegate was not satisfied the visa applicants met the requirements of orphan relative in r.1.14.

5. The review applicant appeared before the Tribunal on 25 October 2018 via video link to give evidence and present arguments. The Tribunal also received oral evidence from the four visa applicants via telephone, and three other witnesses via telephone including the review applicant’s nephew, a midwife who attended the visa applicant when she was ill, and a witness who was a close friend of the review applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The main issue in the present case is whether the visa applicants meet the requirements of orphan relative in r.1.14, particularly r.1.14(b) that they cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

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

8. 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.

9. ‘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 review applicant has provided the birth certificate for herself and the visa applicants’ mother. The visa applicants provided their birth certificates which all record their parents’ names, and their mother’s name is the same as the name on her own birth certificate.  I am satisfied the review applicant and the visa applicants’ mother are biological sisters. I am satisfied the review applicant is the maternal aunt of the four visa applicants. I am satisfied based on the review applicant’s certificate of Australian citizenship granted in 2007, that she is an Australian citizen. For these reasons, I am satisfied the review applicant is a relative of the visa applicants, namely the aunt, within the meaning of r.1.03.  For the purposes of consideration of r.1.14, I am satisfied the review applicant is the relevant Australian relative.

10. For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Therefore the Tribunal finds that cl.117.211(a) is not met.

    Age – r.1.14(a)(i)

11. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. Based on the four visa applicants birth certificates, I am satisfied that they were all aged under eighteen years at the time of application.  Accordingly the visa applicants met the requirements of  r.1.14(a)(i) at the time of application.

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

12. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Based ion the consistent evidence of the visa applicants and the review applicant, I am satisfied that at the time of application the visa applicants did not have a spouse or partner or a fiancé(e). Accordingly, the visa applicants met the requirements of  r.1.14(a)(ii) at the time of application.

    Relative – r.1.14(a)(iii)

13. 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. As stated above I am satisfied the review applicant is the aunt of the four visa applicants.  I am satisfied the review applicant is an Australian citizen.  I am satisfied the review applicant has resided in Australia since 2007, and has Australian born / citizen children.  I accept the review applicant is employed in Australia. I accept the review applicant has travelled out of Australia in 2017.  I am satisfied the review applicant is usually resident in Australia.

14. Accordingly, the visa applicants met the requirements of r.1.14(a)(iii) at the time of application.  

    No parental care – r.1.14(b)

15. 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.

16. I have considered the translated death certificate from the Ministry of Health provided in relation to the father of the four visa applicants. I have considered the consistent evidence from the four visa applicants and the review applicant. I am satisfied, based on the consistent oral and documentary evidence before me that the visa applicants’ father died in August 2014, and is therefore unable to care for the visa applicants.

17. At the time of application the visa applicants claimed their mother was permanently incapacitated from caring for them because of illness. In support of this, the review applicant provided two medical reports.  One report was from the [named medical centre] dated [in] November 2014, and named the visa applicants’ mother, and stated her date of birth and gender in the heading of the letter. The second letter from the [named medical centre] was not dated, and had a different heading.  The same doctor’s name was in the title but the signature was different. The visa applicants’ mother’s name, date of birth and gender was not recorded in the heading of the letter. The dissimilarities were noted between the reports in the Department’s decision record dated 14 August 2017.

18. The tribunal requested the two medical reports be verified, and was advised by the [relevant consular office] that they sent a representative to the issuing office at the medical centre.  The representative was advised that there was no record of the two medical reports being issued at the medical centre and the manager confirmed it was not his signature on either of the medical reports. The advice to the tribunal was that the medical reports were non-genuine and counterfeit.

19. This information was put to the review applicant pursuant to the s.359A process.  The tribunal advised the review applicant that if it relied on the finding that the medical reports she had provided are counterfeit and non-genuine, it is relevant to the tribunal findings as to whether the visa applicants’ mother is permanently incapacitated from providing parental care to the visa applicants.   The tribunal advised the review applicant that if it was not satisfied that the visa applicants’ mother is permanently incapacitated it would mean that the visa applicants do not meet the criteria of orphan relative in r.1.14.

20. The review applicant was invited to comment or respond to this information.  The review applicant provided her comments and response in writing, and submitted she did not know the document was false.

21. The review applicant further submitted that the visa applicants’ mother had since died, and the children were now definitely orphans.

22. I heard consistent and detailed evidence at the hearing in relation to the illness, death, and funeral of the visa applicants’ mother in late 2017.   I am satisfied that the review applicant travelled to Somalia in October 2017 with her children.  I accept the visa applicants’ mother was staying at her and the review applicants’ father’s house, and the review applicant and her children also stayed there. I accept the visa applicants’ mother had been seriously unwell for two to three months and died [in] November 2017.  I accept the witness who had worked as a midwife assisted the family through the woman’s illness with some nursing support including providing saline drips. I accept the review applicant’s nephew assisted to take the visa applicants’ mother’s body to the closest medical centre, (at the insistence of her father), after the death to confirm she had died. I accept the review applicant’s nephew made the funeral arrangements.  I accept the review applicant was present when her sister died. I accept that the review applicant’s mother’s friend and neighbour attended the women’s condolences tradition at the funeral.

23. However, as I discussed with the review applicant, although I accept that her sister, the mother of the visa applicants died in November 2017, the issue of the non-genuine medical reports is still relevant.

24. I have considered the review applicant asked her step mother to obtain the medical reports. I have considered the evidence of the review applicant that there is systematic corruption and bribery involved in obtaining documents in Somalia. I accept the submissions of the review applicant that she did not directly obtain the medical reports, and did not know the documents were false. This does not detract from the issue that the only medical reports I have before me are assessed as counterfeit and non-genuine. I accept the medical reports are counterfeit and non-genuine. I cannot place weight on the medical reports as reliable evidence that the visa applicants’ mother was permanently incapacitated at the time of application.

25. I have considered the consistent evidence of the visa applicants that their mother was sick, and could not look after them.  I asked all the four visa applicants if they had any memory of the parents that they could tell me about, or any experience that they could remember.   [The first visa applicant] stated that in the early days her mother looked after them but later on she got weaker and could not look after them.  She stated it was over the last seven years that her mother’s health deteriorated. [The second visa applicant] stated that his parents used to look after him but in later days they could not.  He stated his parents were sick most of the time. [The third visa applicant]  stated he could remember his parents used to be there for them all, helping them, and doing what they could,  He stated his mother moved to his grandfather’s house after his father died, and she died in that house. He stated he remembered being obedient for his mother.  [The fourth visa applicant] stated his parents were sick most of the time.  He stated he does not remember much because it was a long time ago. In his evidence [he] was more focussed on the present, stating that they were living alone with no-one to help them, and other boys threw stones at him on his way to and from school. The visa applicants stated their mother moved to their grandfather’s house after their father died, and they remained alone in their family house.

26. I have considered that the visa applicants’ mother ultimately died of an illness. I have considered the consistent evidence from the four visa applicants that their mother was sick and unable to care for them.

27. I have considered that I have no reliable medical evidence in relation to the condition and capacity of the visa applicants’ mother at the time of application.

28. I have carefully assessed the evidence of the visa applicants in relation to the health and capacity of their mother at the time of application. I find that the visa applicants did not provide any detailed evidence, except that their parents were both sick, and unable to care for them. I am cognisant that the visa applicants were children at the time of application.  However, in the absence of reliable medical evidence, I am not satisfied that there is sufficient evidence before me to find the visa applicants’ mother was permanently incapacitated from providing care to the visa applicants at the time of application.

29. The review applicant submitted that the tribunal should have asked the visa applicants specific questions about their parents, for example whether they were tall, to obtain direct evidence about the visa applicants’ relationship with their parents, and about the visa applicants’ parent’s illness.  The tribunal asked the four visa applicants whether they had any memories of their parents, or of doing anything with their parents, or any specific recollection of their mother or father.   I have considered the review applicant’s submission, but I am satisfied the visa applicants were given reasonable and fair opportunity to provide detailed evidence that was relevant to criteria to be considered in this review.  I am cognisant that the visa applicants were giving evidence through an interpreter via the telephone, about a period of their lives when they were teenagers, and the two youngest visa applicants were not yet adults at the time of the hearing. I am satisfied the visa applicants were treated fairly and their evidence considered appropriately by the tribunal.

30. I have considered the evidence available to me. I have considered and assessed the evidence provided to the tribunal. For the reasons set out I am not satisfied that the evidence is sufficient to establish that the visa applicants’ mother was permanently incapacitated from caring for the visa applicants at the time of application.

31. For this reason I find the four visa applicants do not meet the requirement that they cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts, at the time of application.

32. Accordingly, the four visa applicants do not meet the requirements of r.1.14(b) at the time of application.   

33. Given the findings above, the four visa applicants do not meet the requirements of cl.117.211.   

34. 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

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

    Margie Bourke
    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.