1724242 (Migration)

[2018] AATA 4083

1724242 (Migration) [2018] AATA 4083 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724242

MEMBER:Margie Bourke

DATE:27 August 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 27 August 2018 at 11:53am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – definition of relative – sister of applicant’s grandmother – cultural reference of grandmother – other family member’s inability to care – financial support – decision under review affirmed

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

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 3 August 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 2 July 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 which requires that the visa applicant is the orphan relative of the Australian relative and meets the criteria of r.1.14.

4. 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 two visa applicants are relatives of the sponsor as required by r.1.14(a) (iii).

5. The review applicant appeared before the tribunal on 16 August 2018 to give evidence and present arguments. The tribunal also received oral evidence from the review applicant’s husband and the two visa applicants gave evidence via telephone.  The tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

6. The review applicant was represented in relation to the review. The representative attended the tribunal hearing.  The representative is the review applicant’s daughter.

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 two visa applicants meet the definition of orphan relative in r.1.14.

9. The applicant provided the tribunal with the two Department decision records in relation to the two visa applicants, both dated 3 August 2017, and both similarly worded.  In the two decision records, the delegate noted that in the application it was claimed that the review applicant (who is the sponsor of the visa applicants) is the grandmother of the visa applicants. The Department thought there was insufficient evidence of the claimed grandmother / grandchild relationship and offered the visa applicants DNA testing to determine the claimed biological relationship. In response to the offer of DNA testing, the Department was advised that the sponsor (the review applicant) was the step grandmother of the visa applicants, and that the visa applicants’ mother was the adopted niece of the review applicant. The Department was further advised by the applicants that the DNA laboratory had advised this relationship was unlikely to be confirmed by testing.

10. The delegate noted that the Department was only advised that the review applicant was the step grandmother of the visa applicants after the offer for DNA testing to confirm the claimed relationship was made.  The delegate concluded that he could not be satisfied that the visa applicants were relatives of the sponsor, (the review applicant).

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

11. Clause 117.211 requires that at the time of application the visa applicants are orphan relatives of an Australian relative (cl.117.211(a)), or not orphan relatives only because the visa applicants have been adopted by an Australian relative (cl.117.211(b)). The visa applicants must continue to satisfy that criterion at the time of decision, or not do so only because they have turned 18: cl.117.221.

12. ‘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 applicants 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 stated she arrived in Australia in 1994, and was granted Australian citizenship approximately two years later.  She stated she is the holder of an Australian issued passport.  The tribunal requested copies of the citizenship certificate and passport be provided to the tribunal within seven days of the hearing. I am satisfied that the review applicant is an Australian citizen. The issue is whether she is a relative within the meaning of r.1.03. 

13. For the reasons below, the visa applicants are not orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are not orphan relatives of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met, and does not continue to be met at the time of decision.

    Relative – r.1.14(a)(iii)

14. 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.

15. The review applicant told the tribunal that she was born in Somalia, and migrated to Australia with her husband and four children in 1994 as the holders of refugee visas. The review applicant was pregnant at the time, and she had three more children born in Australia. 

16. The review applicant told the tribunal she was one of [a number of] siblings.  She named the [number of] siblings in her family. She stated [some] of her brothers are deceased, and one of her sisters. Her deceased sister’s name is [Ms A].  The review applicant stated she has [other] sisters who currently live in Baido, in Somalia.

17. The review applicant stated that her sister [Ms A] is the mother of [name], who is deceased, and is the mother of the two visa applicants.  The review applicant stated she is the sister of the grandmother of the two visa applicants.

18. The review applicant stated she had not met the visa applicants since they were very small in 2002, and had not returned to Somalia to visit the visa applicants, and had not returned to Somalia at the time of [the] mother of the visa applicants’ death.

19. I put the content of the Department interview dated December 2016 with the two visa applicants’ to the review applicant pursuant to the s.359AA process. I put the particulars that the interview notes record that the visa applicants state the review applicant came to visit them about two years ago, and after their mother’s death.  The review applicant chose to respond after a short break in a statement read out that she last visited the children in 2002, the visa applicants do not speak Somali but rather a tribal version of the language called Maymai, and that their answers in the interview were confused and misunderstood. 

20. I have given this answer weight and considered the linguistic difficulties related to the responses of the visa applicants in the notes of the interview.  I note in the interview the visa applicants are recorded as saying the review applicant is their grandmother, the mother of their mother.  I note the answer is not recorded as the mother of my mother, or the mother of our mother, but rather the mother of their mother.

21. I have considered the evidence of the two visa applicants in the hearing.  I have considered that the Somali interpreter advised the tribunal several times that he could not understand what was said by the [primary visa applicant]. I accept that the two visa applicants speak a tribal language that is a version of Somali, and can be liable to misinterpretation. I am satisfied that the record of the interview with the Department officers in June 2016 is not reliable.  For this reason I give it little weight, and I do not consider it inconsistent with the evidence in the hearing.

22. I have considered that the [second visa applicant] was much clearer in her evidence and the interpreter had less difficulty in interpreting her evidence for the tribunal.  In their oral evidence both [visa applicants] stated that the review applicant is their grandmother.  [The primary visa applicant] stated that he has not seen the review applicant, but hears her voice.  He stated the review applicant is his mother’s aunt.  [The second visa applicant] stated that the review applicant is not her mother’s mother.  She stated the review applicant is her mother’s aunt.

23. The review applicant stated that in Somali culture she is the grandmother to the visa applicants. She stated that the other aunts of the visa applicants’ mother who still reside in Baydo Somalia, do not have enough to care for the visa applicants. The review applicants stated that they contacted her to help care for the visa applicants.

24. I accept that in Somalia, in the absence of the biological grandmother, a sibling of the grandmother, may be thought of as a grandmother by the grandchildren. I have also noted that there are three surviving siblings of the deceased grandmother in Somalia.  They could also be culturally referred to as grandmothers of the visa applicants. I accept the review applicant arranged to move the visa applicants to [another country], where they are currently living.

25. The representative stated she sent the email to the Department which stated that the visa applicants’ mother died in child birth, but this was based on her misunderstanding her mother’s (the review applicant’s) account of their mother dying when the children were small and the review applicant not seeing the woman again after the time when they were babies.  While it is concerning that incorrect information was provided to the Department, the information is not relevant to the issue of whether the review applicant is a relative of the visa applicants within the meaning of r.1.03. After the hearing the representative provided a statutory declaration dated 28 August 2018 in which she declared the information in the email to the Department was a mistake based on communication difficulties and translation issues.  The representative stated she was trying to write fast and her children were crying when her mother was trying to explain the circumstances of the visa applicants’ mother’s death.  She stated she did not intend, and she apologised for, any confusion.

26. I have considered the evidence before me.  The consistent evidence at the hearing from the review applicant and the two visa applicants is that the review applicant is the sister of the grandmother of the visa applicants.  I accept the evidence of the review applicant and the visa applicants at the hearing. Based on the consistent evidence before me I accept that the review applicant is the sister of the visa applicants’ grandmother.

27. I discussed with the review applicant that being culturally considered the grandmother in Somalia, does not mean the sister of the grandmother is recognised as the grandmother for the purposes of r.1.03.  I discussed with the review applicant that the sister of the grandmother of the visa applicants is not a relative of the visa applicants within the meaning of r.1.03.

28. At the conclusion of the hearing, I granted the review applicant seven days to provide submissions in relation to whether the visa applicants are relatives of the review applicant within the meaning of r.1.03.  After the hearing the review applicant provided a typed signed statement in which she submits that the visa applicants rely on her and have always known her as their grandmother.  The review applicant stated the visa applicants have three alive great aunts residing in Baydo, but they are deprived and disadvantaged and also rely of the review applicant for financial support.

29. The review applicant submitted the criteria “are somewhat meet”. She submitted that she is the sole guardian, and the visa applicants have only ever known her as grandmother. The review applicant submitted the tribunal should consider the community leaders say that she is the only grandmother that they know the visa applicants have.  The review applicant submits she may not be the “blood” grandmother of the visa applicants and she is not technically the grandmother of the visa applicants, but she is known to be the grandmother of the visa applicants, and they are known as her grandchildren. The review applicant submits the tribunal should consider her actions and responsibilities in in looking after the welfare of the visa applicants.

30. I have considered the submissions of the review applicant.  I accept that the review applicant has taken responsibility for the welfare of the visa applicants. I accept that in Somali communities the review applicant may be considered as the grandmother of the visa applicants because she has provided financial support for them, and because she is related to them as the sister of their grandmother.

31. However, I must consider the evidence before me and apply it to the criteria in the legislation and the regulations. The review applicant, based on her own evidence, is not the biological grandmother of the visa applicants.   I am satisfied that she is the sister of the grandmother of the visa applicants, or the great aunt of the visa applicants. In the definition of relative in r.1.03, the sister of the grandmother of a person, or the great aunt of a person, is not included in the definition of the relative of the person.

32. Based on the evidence before me, I am not satisfied that the visa applicants are relatives of the review applicant within the meaning of r.1.03.  I am not satisfied that the visa applicants are a close relative, or are a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew of the review applicant.

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

34. As the tribunal finds the visa applicants do not meet the requirements of r.1.14(a)(iii), the tribunal is not satisfied the visa applicants meet the criteria for orphan relative in r.1.14.  As the visa applicants do not meet the criteria for orphan relative in r.1.14, they do not meet the requirements of cl.117.221 that the visa applicants are orphan relatives.

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

36. The tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, and this is not only because the visa applicant has turned 18. It follows that cl.117.221 is not met.

37. 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

38. 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.