1824309 (MIGRATION)

1824309 (MIGRATION) [2019] AATA 2897 (27 JUNE 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1824309
MEMBER:Jane Marquard
DATE:27 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the first-named visa’s application for a 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.
The Tribunal affirms the decisions not to grant the second and third named visa applicants Child (Migrant) (Class AH) visas.

Statement made on 27 June 2019 at 3:22pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – cultural surrogacy – second and third named applicants are not relatives of Australian relative – cousins of the Australian relative rather than siblings – disappearance of visa applicant's mother – best interests of the visa applicant – unique and compassionate circumstances – Ministerial intervention referral in relation to second and third named applicants – decision under review remitted for the first named applicant – decision affirmed for the second and third named visa applicants

LEGISLATION
Child Support (Assessment) Act 1988 (Cth)
Family Law Act 1975 (Cth), ss 60, 60HA, 60HB, 60H, 69, 69P, 69Q, 69R, 69U
Migration Act 1958 (Cth), ss 5, 5CA, 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.14, 1.15; Schedule 2, cls 117.211, 117.221

CASES
Claridge v MIBP [2013] FCCA 1953
EC v MIMIA [2004] FCA 978
Mercado v MIAC [2007] FMCA 1216
ND v BM (2003) 175 FLR 355
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

The visa applicants are boys from South Sudan, born in 2006, 2010 and 2012, so currently aged 12, 8 and 6. They currently reside in Kenya.
The review applicant is an Australian citizen. She claimed in her application that the visa applicants are her step brothers and that they have the same father, but different mothers.
This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 June 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas in Nairobi, Kenya, on 22 December 2017. 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.
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 states that at the time of application the applicant must be an orphan relative or not be an orphan relative only because the applicant has been adopted by the Australian relative. Clause 117.221 requires that the applicant continue to satisfy this criterion at the time of decision.
The delegate refused to grant the visas because the applicants did not meet cl.117.211 or 117.221 of Schedule 2 to the Regulations as the delegate was not satisfied that their parents were dead, permanently incapacitated or of unknown whereabouts as required by Regulation 1.14(b).
The review applicant appeared before the Tribunal on 16 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses, [Ms A], and Mr [B]. The applicants were represented by[name]. The review applicant had some difficulties understanding due to a hearing impediment however Mr [B] answered questions and also explained matters to the review applicant. Written submissions were provided after the hearing.
A summary of the evidence at the Department and before the Tribunal is set out below, along with the findings and reasons for decision.
The Tribunal has concluded that in relation to the first named applicant the matter should be remitted for reconsideration, and in relation to the second and third named applicants the decision under review should be affirmed. The Tribunal has considered the second and third named applicants’ cases and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and refers the matter to the Department for referral to the Minister unders.351 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered the requirements of Regulation 1.14 as follows:
Age – r.1.14(a)(i)
Regulation 1.14(a)(i) requires that the visa applicants have not turned 18. At the time of application, the visa applicants were 11, 7 and 6 years old. Copies of their birth certificates and age assessment certificates were provided. As at the date of decision, they are aged 12, 8 and 6.
The Tribunal is satisfied that r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.
Spouse or de facto partner – r.1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicants do not have a spouse or de facto partner. The children are young and there is no evidence of spouses or de facto partners. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.
Relative – r.1.14(a)(iii)
Regulation 1.14(a)(iii) requires the visa applicants 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.
[The review applicant] is an Australian citizen and passport holder and is therefore an Australian relative in accordance with r.1.14(a)(iii). The issue of whether the visa applicants are orphan relatives is considered below.
Are the visa applicants orphan relatives of an Australian relative?
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.
‘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 first named applicant, [Mr C] an orphan relative of an Australian relative?
The review applicant, [Mrs D] is an Australian citizen and the holder of an Australian passport. She was born in Bor, South Sudan. Her mother is [Mrs E] with whom she now lives in Australia. Her father was [Mr F] who is now [deceased]. During the civil war [Mrs E] and [Mrs D] were separated from [Mr F]. In 1995 they fled Sudan for Camp Kakuma in Kenya, where they lived for 10 years. [Mrs D] was then granted a UNHCR humanitarian visa for Australia and they arrived in Australia in 2005. [Mrs E] told her husband, [Mr F] that he had her permission to take another wife, which he did. He then married [Ms G]. [Mrs D] went to school in Canberra and she and her mother became active in [Church 1], where they met the witness, [Ms A] in 2006.
It was submitted that the eldest visa applicant, [Mr C], is [Mrs D]’s biological half-brother as they share the same father, [Mr F]. It was submitted that DNA testing would show [Mr C]’s sibling relationship with [Mrs D], and a familial relationship with the other two applicants, [Mr H] and [Mr I].
The first issue is whether the first named applicant, [Mr C] is a relative of [Mrs D]. It is claimed that [Mr C]’s mother is [Ms G] and his father is [Mr F], as shown in the birth certificate and age assessment document. [Mrs D]’s father is also [Mr F], although she has a different mother, [Mrs E]. This makes [Mr C] and the review applicant, [Mrs D], half siblings.
In Mercado v MIAC,[1] the Federal Magistrates Court considered whether the reference to ‘brother’ in the definition of ‘overseas near relative’ for the purposes of the definition of ‘remaining relative’ in r.1.15 included or excluded a ‘half-brother’. The Tribunal relied on the Macquarie Dictionary definition of ‘brother’, which included reference to a ‘half-brother’, in construing the regulation. The Court noted that the Act and Regulations make no reference to the class of persons defined as ‘half-brother’, but accepted the Minister’s submission that there is no apparent policy reason why a half-brother would be excluded, particularly having regard to the inclusion of ‘step-brothers’. In Mercado v MIAC, Lloyd-Jones FM commented: ‘The denial of the reunion of a blood relative, while permitting a reunion based on marriage which may be dissolved at any time, does not appear compatible with the overall intent of the legislation. In the circumstance, I am satisfied that in the absence of direct reference to the status of ‘half-brother’ in the Act or Regulations, the approach adopted by the Tribunal was correct.’[2]
[1] [2007] FMCA 1216 (Lloyd Jones FM, 26 July 2007).
[2] Mercado v MIAC [2007] FMCA 1216 (Lloyd Jones FM, 26 July 2007) at [33].
In Claridge v MIBP[3] the Court agreed with the reasoning set out in Mercardo and found that the term ‘brother’ included ‘half-brother’.[4] The Court noted that while the meaning to be ascribed to words may change from time to time, there is judicial authority of some antiquity supporting the reasoning adopted in Mercado[5].
[3] [2013] FCCA 1953 (Burchardt J, 6 December 2013)
[4] Claridge v MIBP [2013] FCCA 1953 (Burchardt J, 6 December 2013) at [31]-[36].
[5] Claridge v MIBP [2013] FCCA 1953 (Burchardt J, 6 December 2013) at [35].
On the basis of the intention of the legislature as confirmed by these authorities, the Tribunal is satisfied that [Mr C] is a half-brother of [Mrs D] and is therefore a relative of the Australian relative.
Are the second named applicant, [Mr H] and the third named applicant [Mr I] relatives of an Australian relative?
The second issue is whether [Mr H] and [Mr I] are relatives of the Australian relative, the review applicant, [Mrs D].
It was submitted that the two youngest visa applicants, [Mr H] and [Mr I], are biological relatives of [Mrs D]’s, as their father is [Mrs D]’s first cousin. They are therefore first cousins, once removed of [Mrs D]. The Tribunal accepts that they are related in this way. However first cousins once removed are not included in the definition of ‘Orphan relative’ as defined in r.1.14 of the Regulations. 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.
[Mr H] and [Mr I] are biological children of [Ms G] who is also [Mr C]’s mother, and an unnamed nephew of [Mr F], the father of [Mr C] and [Mrs D]. It was submitted by the applicants that under Sudanese culture, the nephew simply provided the sperm to further [Mr F]’s bloodline as [Mr F] had passed away, and he was not actually the ‘father’. It was submitted that this practice is not uncommon in the South Sudanese community. According to the applicants, before they came to Australia, [Mrs E], who is [Mrs D]’s mother, the first wife of [Mr F], was separated from [Mr F]. In 2006 they heard that [Mr F], who was then with [Ms G], had passed away. They heard that [Ms G] was young, and pregnant. She needed someone to look after her. After [Mr F] passed away, [Mrs E] travelled to Kenya to talk to the community in order to find one of them to sire other children on behalf of [Mr F], as [Mrs E] considered it imperative, culturally and familiarly that the husband’s name continue through more children. [Mr F]’s brothers were dead so the responsibility fell to a nephew to continue the blood line. She gave permission to [Mr F]’s nephew to continue [Mr F]’s bloodline, by having intercourse with the second wife, [Ms G]. This then happened, and [Mr H] and [Mr I] were born in 2010 and 2012. However, it was submitted, the nephew had no legal or cultural responsibility and he has had nothing to do with the children. The responsibility for caring for the children fell to the permission giver, [Mrs E], not the biological father, who assumed no responsibility or paternal role.
It was argued that the father was therefore deemed to be [Mr F], even though he had passed away, rather than the biological father. This would mean that [Mrs D] would be their half-sister. It was argued that [Mr H] and [Mr I] are ‘culturally and emotionally’ considered to be half-brothers of their Australian sponsor, [Mrs D]. It was argued that they bear the name of [Mr F] as their family names on age assessments, school records and passports and are therefore formally considered the sons of [Mr F]. It was argued that culturally and emotionally, [Mr F] is considered their father. The Migrant Information Centre, South Sudanese Cross Cultural Training Report[6] states that:
Compositions of the family in Africa and the Sudan the family is an extended family… children from the same father but different mother consider themselves as brothers and sisters…all of the children within the extended family are considered equal and must be treated equally. Each family has a male head who is responsible for all family members. The head of the family and his wives are obligated to care for their nephews, nieces and cousins as their own children.
[6] Migrant Information Centre, Southern Sudanese Cross Cultural Training Report, >
The witness Ms [A] said that it took her some time to understand how the culture works. She understands there is no responsibility placed on the nephew to care for the visa applicants, as his role was to sire the children and carry on the father’s name. He was required to carry out this role as [Mr F] had no brothers. She said that the visa applicants are therefore family members of the father who had passed away and his family. She had heard from the family that the nephew had no contact with the visa applicants at all.
It was submitted that [Mrs E], the first wife or [Mr F], sees the visa applicants as her step-children and [Mr B] ([Mrs D]’s husband) regards them as his wife’s brothers. Further it was submitted that the South Sudanese community in Africa and Canberra regard the visa applicants as the sons of [Mr F] and family members of [Mrs E] and [Mrs D].
The Tribunal acknowledges that this kind of cultural surrogacy may well be a reality for many families in South Sudan. However the Tribunal must consider whether [Mr H] and [Mr I] are relatives of [Mrs D], and in order to do that the Tribunal must look to Australian law to ascertain who their parents are.
‘Parent’ is defined in s.5(1) of the Act as ‘without limiting who is a parent of a person for the purposes of this Act, someone is the parents of a person if the person is his or her child because of the definition of child in s.5CA’. The definition of child under s.5CA of the Act includes:

- a child within the meaning of the Family Law Act 1975 (FLA) ( except for adopted children);

- someone who is adopted within the meaning of the Act.
A ‘parent’ is not defined by the FLA, however, the FLA provides a series of parenthood presumptions (which are rebuttable on balance of probabilities (s.69U)) and deemed parentage provisions where a person is deemed to be a parent if certain circumstances apply. Subdivision D, of Division 12, of Part VII of the FLA contains the presumptions of parentage. Relevant in the circumstances of this case are sections 69P, 69Q and 69R.
There is a presumption of parentage arising from marriage in s.69P(2), which provides that if ‘a marriage to which a woman is a party is ended by death… and a child is born to the woman within 44 weeks after that time, the child is presumed to be a child of the woman and the husband or purported husband.’ This presumption does not apply as the children were not born within 44 weeks of the death of [Mr F] who died in 2006.
Section 69Q allows for a presumption of paternity where a woman cohabited with a man at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth. Again this presumption does not apply as [Mr F] died in 2006.
The presumption of parentage in s.69R arising from registration of birth does not appear to apply, as South Sudan is not a prescribed overseas jurisdiction under Schedule 2 of the Family Law Regulations.
With all of these presumptions, s.69U provides that they are rebuttable by proof on balance of probabilities. The applicants have confirmed that [Mr F]’s nephew is the biological father of [Mr H] and [Mr I]. As such, it appears that in any event, any of the above presumptions would be rebuttable on the evidence. The Tribunal is satisfied therefore that the parenthood presumptions under the FLA do not apply in this case.
The Tribunal has considered the deeming provisions. The FLA deems a child to be a child of a person if born as a result of artificial conception procedures (s.60H), born of de facto partners (s.60HA), or under a surrogacy arrangement as ordered by a Court (s.60HB). There has been no evidence put to the Tribunal that the children were conceived under artificial conception, de facto or surrogacy. Therefore the deeming provisions do not apply.
The FLA is silent on the issue of ‘cultural or emotional surrogacy’ but there is a strong presumption of parentage with regards to the biological parent in case law, which can be displaced only if one of the deemed parentage provisions apply. For instance in In the Marriage of Tobin (1999) 24 Fam LR 635, the Court found that the natural meaning of the word ‘parent’ was the biological mother or father of the child. The case of ND v BM (2003) 175 FLR 355 provides that children born out of natural conception (from intercourse) are considered to be children of the biological father, even if there is a sperm donor arrangement, and the ‘donor’ has refused to accept any parental responsibility for the child. While this was in the context of the Child Support (Assessment) Act 1988 and obligations to pay child support as a ‘parent’, the interpretation is consistent with that of the FLA.
In this case the fact that [Mr F]’s nephew is the biological father of [Mr H] and [Mr I] is likely the determinative issue on review, and can be displaced only if a deemed parentage provision applies, which it does not here.
The Tribunal is not satisfied therefore that [Mr H] and [Mr I] are children of [Mr F], even though culturally he may be regarded as their father. Therefore, the Tribunal is not satisfied that [Mr H] and [Mr I] are relatives of the Australian relative, [Mrs D].
Accordingly, [Mr H] and [Mr I] do not meet cl.117.211(a).
No parental care – r.1.14(b)- [Mr C]
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.

[Mr C]’s mother is [Ms G] and his father is [Mr F].
The applicants have been consistent about the fact that [Mr F] was killed in May 2006. While there is no death certificate, there is evidence that South Sudanese leaders in Canberra were informed of his death and a memorial service was held for him in June 2006 at [Church 1] in Canberra. [Mr F]’s son, [Mr C] was born later that year. [Mr F]’s name is on his birth certificate. [A representative] of [a Sudanese organisation] in Canberra, attested to the fact that he received a contemporaneous telephone call telling him of the death of [Mr F]. [Another person] has confirmed that he officiated at the memorial service for [Mr F] held at [Church 1] [in] June 2006 for the Sudanese community. Church records have been provided noting the service time and date.
The witness, [Ms A], a member of the church community said that the people of [Church 1] [were] asked in June 2006 if the premises could be used for a gathering of the Sudanese community to pay tribute to and mourn the death of [Mrs E]’s husband. She said that the event started at 12.30 and went into the evening. The church was full and the ceremony went for some hours as people paid their respects to [Mr F] and his family members. She attended for an hour to show her support to [Mrs E] but the words spoken were all in Dinka. At one point a younger Sudanese man translated for her. She said that the people there understood that [Mr F] had been [killed].
The Tribunal is satisfied considering all this evidence cumulatively that [Mr C]’s father, [Mr F] is deceased.
The disappearance of [Ms G] was described as follows. [Mrs D] met [Mr B] in Kenya in 2011 and they married in February 2013. He was granted a permanent partner visa in May 2015. They have three children, born 2015, 2017 and 2019.
[Mr B] said that in May 2014 he was living in Kenya, but was already married to [Mrs D], who was living in Australia. [Mrs D] went to visit him in Nairobi. At that time [Ms G] was living with the three boys in Nakuru. [Mr B]’s younger brother came to his apartment in Nairobi to meet [Mrs D]. He brought with him his uncle’s three children. It was school holidays. They all lived together for one month. One evening at about 8 or 9 pm, they heard a knock on the door and looked out of the window and saw the three visa applicants at the door. It was a difficult door to open so they were waiting by the door. He was surprised to see them and he and [Mrs D] went out and embraced them. [Ms G] had left, and the boys told them that she had brought them there. [Ms G] said that she wanted them to stay there. She did not return. The boys only had the clothes that they were wearing. [Mr B] and [Mrs D] had to go and buy them clothes. He could not turn the children away but did think that [Ms G] would return, so they waited for her to return. He contacted [Mrs E] and told her what happened, and she made enquiries from the community but they could not find [Ms G]. [Mr B] later went to Nakuru. He asked people in the community if they had seen [Ms G], and they said they had not seen her for months before. They had no suspicion about where she had gone. He checked with various people and went to her house, but no-one had seen her. Her house was vacated and up for rent. He was not sure what had happened to her and no report was made to the police because they always thought that she would return. [Mrs D] stayed on in Kenya to help look after the boys and work out what to do. Their church community in Australia were told about what had happened and decided to sponsor the children. They have helped them attend [a] good school. Since [Ms G] left the boys on the doorstep, they have not seen or heard of [Ms G]. [Mr B] and [Mrs D] do not know why she left her children. She does not appear to have any family or friends in Nakuru and they do not know how else to find her.
[Mr B] said that he attempted to call Nakuru police in 2018 but unfortunately could not reach them as the website number did not work. Since the Tribunal hearing he also contacted the Red Cross to lodge a report who have stated that it would take 6 to 12 months to make a report, and the Kenyan police. No further response has been received from either organisation.
It was submitted that [Mrs E] has been the closest relative for the visa applicants, and has sent them money since 2008, working [to] support them. She regards herself as the responsible parent for the children, and [Mrs D] regards herself as their sister.
[Mrs D] said that she travelled to Nairobi to be with her husband in May 2014, whom she had married the previous year, but not seen since. She planned to stay for three months. It was school holidays at the time and [Mr B]’s younger [brother], was staying with them and his uncle’s three [children]. One evening while [Mrs D] was there, a security light came on outside. [Mr B] looked out of the glass top of the door and saw the three boys being pushed through the security gate to the compound. [Mr C] was about 8 years old at the time, [Mr H] 4, and [Mr I], 2. [Mr C] told them that their mother had brought them and was gone. After she disappeared [Mrs D] had no choice but to extend her stay in Nairobi to make arrangements for them. She stayed until January 2015. It took many months to arrange a boarding school, [for] the older boys and to obtain a rental house and someone to care for the younger boy. She provided photographs of herself with the boys and copies of her Kenyan visa stamps. [Mr B] had to stay on to care for [Mr I] until he came to Australia in June 2015. He then arranged for a distant relative to care for [Mr I] and found a permanent paid carer. Money to support the boys is sent to [Mr B]’s younger [brother], who is head boy at the [school]. The family in Australia are committed to the care of the boys, and have supported them since 2008 even though it has been difficult. Money was transferred to their mother until she disappeared. After that, money has been sent to carers. [Mrs E] became unemployed for a time and during that time, the church community supported the two older boys in their schooling and accommodation. [Mrs E] became employed again in 2016.
Samples of bank statements evidencing the financial support since 2008 was provided to the Tribunal and they said that a USB with years of transactions is also available. [Mr B] also now contributes funds for the boys.
An affidavit of [a] South Sudanese citizen, dated 23 April 2018 suggests that he had been living with the visa applicants in [Nairobi], and caring for them since their mother abandoned them in 2015. He said that their father died in 2006. He said that he would release them to their stepsister in Australia.
The witness, [Ms A] told the Tribunal that when [Mrs D] went to Nairobi to visit her husband [Mr B], [Mrs D] told her she would be staying for a period of 3 months from May 2014. Before she left she arranged for [Ms A] to pick up her mother [Mrs E] from a bus interchange after she worked the late shift at [her workplace]. The bus arrived at 10.30pm and if they did not pick her up she only got home at 11.30pm. [Ms A] arranged a roster of people from [Church 1] to help her for the three months. However they received notification that [Mrs D] would not be returning in August because the mother of three little boys had dumped the boys late one evening at [Mrs D]’s residence. She heard that [Mrs D] had been in the shower but [Mr B] saw the light go on outside. They stayed on to make arrangements for the boys. [Ms A] received a message through [Mrs E] about what had happened. [Ms A] contacted everyone on the roster and they continued to pick up [Mrs E] even though it was difficult. [Mrs D] extended the visa twice and contacted the Australian embassy for advice. When [Mr B] returned, he remained as carer, and the mother still made no contact with the boys. [Mrs E] paid costs until later 2014 but then she asked the church for assistance as she could not secure another job. The parish council agreed to pay boarding school fees for the boys until she found work, which was early 2015/16. Bank statements were attached.
Attempts have been made to locate the boys’ mother but she has been unable to be found. A notice was put on [social media]. The notice had no response.
The Tribunal is satisfied, considering this information cumulatively, that [Ms G] is of unknown whereabouts. In particular, the Tribunal has taken into consideration, the consistency in the accounts of the story of her disappearance, the recollections of the witness [Ms A] who was told contemporaneously of the boys’ arrival on the doorstep while [Mrs D] was in Kenya, the attempts made to locate her, [Mrs D]’s extension of her trip in Kenya, and the financial documents evidencing that payments have been made for the boys since 2008 by [Mrs E], [Mr B] and [Mrs D].
Accordingly, in relation to [Mr C], r.1.14 (b) was met at the time of application and continues to be met at the time of decision.
Best interests – r.1.14(c)
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.
It is clear that [Mrs D], the review applicant, along with her mother, [Mrs E] and husband, [Mr B], have been caregivers for the three children for many years. They regard themselves as the closest family to these children. Evidence from their church community is that they are good and caring citizens.
The Tribunal is satisfied that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the first named applicant, [Mr C]. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.
Have the second and third named applicants been adopted by the Australian relative?
Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.
The second and third named applicants were not adopted by the Australian relative. Accordingly, cl.117.211 (b) is not met and continues to not be met at the time of decision.
Referral to Minister under Section 351 of the Act
The Tribunal has concluded that the first named applicant meets Clause 117.211 and Clause 117.221 of the Act.
The Tribunal has concluded that the second and third named applicants do not meet Clause 117.211 and Clause 117.221 by virtue of the fact that they are cousins of the Australian relative rather than siblings and do not meet the definition of ‘relative’ in the Regulations. However the Tribunal accepts that culturally and emotionally the second and third named applicants are ‘siblings’ of the first named applicant as well as the review applicant who is an Australian citizen. The Tribunal notes that all three children have been given emotional and financial support by the review applicant, her mother and husband, for many years.
The Tribunal refers the case to the Department for consideration by the Minister pursuant to s.351 of the Act for the reasons set out below.
Section 351 gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), and is of the view that there are unique and exceptional circumstances which warrant this referral. In particular, the Tribunal is of the view that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian family unit. There are also compassionate circumstances regarding the age of the children. Finally, these are circumstances which may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including principles of the best interests of the child and family unity.
Specifically, the first, second and third named visa applicants are boys aged 12, 8 and 6 who have spent their entire lives together as siblings and it would be very difficult for them to be separated, particularly as they do not have parents caring for them in Kenya. Their mother is of unknown whereabouts, as is the father of [Mr H] and [Mr I]. The father of [Mr C] was murdered. The boys regard [Mrs E], the mother of the review applicant, who lives in Australia, as their stepmother, and [Mrs D], the review applicant, as their stepsister. They look to them for emotional and financial support. If they came to live in Australia they would have a settled, secure family, as [Mrs D] and her husband [Mr B] have three children and live with [Mrs E].
The Tribunal found [Mrs D] and [Mr B], who are Australian residents, to be honest, caring and generous individuals. Along with [Mrs D]’s mother, [Mrs E], they have been supporting the boys since 2008, well before they considered a child visa. They are hard workers and have established a close knit church community at [Church 1] in Canberra since 2006. Members of this church vouch for and support them. Their children have all been baptised in this church, [Mrs E] is part of the cleaning roster and they attend church most weekends. [Mr B] is also involved in the Sudanese community, helping new migrants settle, cultural activities, and making sure ‘good and right decisions’ are made for the community. This church community has sponsored the boys in school in Nairobi. A letter from the school, [confirms] that the boys are diligent and co-operative. The eldest boy is head boy of his school.
Ms [A] the witness said that she had been very impressed with the manner in which the review applicant and her family have taken care of the boys in Kenya in every way, financially and emotionally for such a long time. She said they telephone the boys frequently. She said that the family are hard-working and honest.
The family in Australia say that they ‘long for’ the visa applicants to join them in Australia in a safe, loving environment.
Conclusion on time of application criterion:
Given the findings above, cl.117.211 is met in relation to the first named applicant, but not the second and third named applicants.
Conclusion on time of decision criterion:
The Tribunal finds that the first named visa applicant continues to satisfy the criterion in cl.117.211. It follows that cl.117.221 is met.
CONCLUDING PARAGRAPH
Given these findings, the appropriate course is to remit the visa application in relation to the first named applicant to the Minister to consider the remaining criteria for the visa.
For the reasons set out above, the criteria for the grant of a Subclass 117 visa are not met in relation to the second and third named applicants. There have been no claims advanced in respect of the other visa subclasses in Class AH.
DECISION
The Tribunal remits the first named applicant’s application for a 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.
The Tribunal affirms the decisions not to grant the second and third name visa applicants Child (Migrant) (Class AH) visas.
Jane Marquard
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.

[2019] AATA 2897

27 JUNE 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction