1901382 (Migration)

[2022] AATA 2654

1901382 (Migration) [2022] AATA 2654 (14 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Thomas Peter Drakopoulos (MARN: 9357780)

CASE NUMBER:  1901382

MEMBER:Meredith Jackson

DATE:14 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 14 June 2022 at 9:07am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – establishing a biological link – DNA evidence – delay by COVID pandemic conditions – death certificates – no evidence of adoption – one visa applicant has turned 18 – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

EC v MIMIA [2004] FCA 978
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 decisions made by a delegate of the Minister for Home Affairs on 15 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The visa applicants applied for the visas on 26 May 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.

3.The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211(a), which requires that the applicant is an orphan relative of an Australian relative of the applicant.

4.The delegate refused to grant the visas because the visa applicants did not meet cl 117.211 of Schedule 2 to the Regulations. The delegate was not satisfied that each visa applicant was an orphan as claimed and was therefore not satisfied that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts and did not meet the requirements of r.1.14(b). The visa applicants sought review via the review applicant who is their sponsor and claimed aunt.

5.The applicant was represented in relation to the review by Mr Thomas P Drakopoulos of Milner Lawyers.

6.On 25 October 2021 the Tribunal invited the review applicant under s 359(2) of the Act to provide information on which she intended to rely on review, stating the information should be received by 8 November 2021. On 26 October she wrote to the Tribunal via her representative seeking an extension to 30 November 2021, which was granted. The email indicated the review applicant was “trying to finalise DNA evidence” but COVID pandemic conditions were delaying her. On 26 October 2021, a hearing by video link was set down for 13 December 2021.On 16 November the applicant sought an in-person hearing. The Tribunal invited the applicant to attend an in-person hearing on 16 December 2021. On 27 November 2021 the applicant requested that the hearing be rescheduled to a time later in the day. The request could not be accommodated and the hearing was postponed to a date to be fixed. On 30 November 2021 the applicant requested and was granted an extension of time in which to provide the 359(2) response, which he did on 3 December 2021. On 6 December 2021 a hearing by video link was set down for 10 January 2022. The applicant requested and was granted an in-person hearing for the same date. On 14 December 2021 the applicant’s representative wrote to the Tribunal seeking a hearing postponement because the applicant had indicated she was scheduled to fly to [Country 1] to visit her nieces and nephew, the subjects of the review application, and was not scheduled to return until [February] 2022. A new hearing was set down for 26 April 2022. On 21 April 2022 the applicant requested a hearing postponement to May or June 2022 to allow the applicant to obtain written evidence from the “overseas witnesses”. After several back and forth emails in April 2022, the Rep confirmed on 20 April 2022 that the PRA and her husband could speak Acholi however the witnesses in [Country 1] only spoke Ma’di. As the Tribunal was unable to source a Ma’di interpreter, a postponement was granted to allow the Representative to source written statements from the overseas witnesses.

7.The hearing was rescheduled to 24 May 2022. Further correspondence with the representative ensued, wherein a particular interpreter in the Ma’di language of South Sudan was requested. As the Tribunal was unable to source an accredited interpreter, the applicant’s nominated interpreter was engaged for the hearing along with an Acholi interpreter.

8.The review applicant appeared before the Tribunal on 24 May 2022 to give evidence and present arguments. The Tribunal within the hearing made extensive efforts to contact the witnesses in [Country 1] on telephone numbers provided by the applicant, but the witnesses could not be contacted. The Tribunal granted the applicant until 7 June 2022 to provide evidence in writing from the witnesses and make any further submissions in support of her case.

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

BACKGROUND

1. The review applicant is [name], born in South Sudan in [year] and an Australian citizen by 2005 grant. [The review applicant], accompanied by her husband, their children and [specified relatives], arrived in Australia [in] July 2003 on humanitarian visas. In 2004 [the review applicant] sponsored her [other specified relatives] to Australia. In 2005 she sponsored [another specified relative] to Australia. Each was granted a humanitarian visa. In 2014 [the review applicant] applied to sponsor her husband’s nephews to Australia, however the application was rejected.

2. The Tribunal is reviewing decisions to refuse visas to three visa applicants claimed to be the fraternal nieces and nephew of the review applicant. The cases have been combined on review and findings for each of the applicants, for whom separate decisions were provided by the delegate, are included in this decision. The visa applicants are [Visa Applicant A] (born [in year]), [Visa Applicant B] (born [year]) and [Visa Applicant C] (born [year]). They are resident in [Country 1] as refugees following the claimed deaths of their parents in 2014 in an ambush. The children’s parents are stated to be [Father A] (born [year]) and [Mother A] (born [year]). The applicants were each aged under 18 years at the time of the 26 May 2017 visa application. The first-named applicant [Visa Applicant A] is now aged [age] years, while [Visa Applicant C] and [Visa Applicant B] are under 18 years at the time of this decision. The sponsor and review applicant [named] claims she is the aunt of the children because she is the sister of [Father A]. She also claims to be the sister [Guardian A], the current guardian of the three applicants in [Country 1].

3. In each of the cases, the delegate found the visa applicant did not meet regulation 1.14(b) which relevantly requires that the applicant is an orphan resident of an Australian citizen and cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

   ISSUES AND LAW

4. The issue in the present case is whether the visa applicants are orphan relatives of an Australian relative.

   Is the first-named visa applicant an orphan relative of an Australian relative?

5. 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.

6. ‘Orphan relative’ is defined in reg 1.14 of the Regulations. 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.

7. 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): reg 1.03.  In the present case, [the review applicant] claims to be the relevant Australian relative.

8. For the reasons below, the Tribunal finds the first-named visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the first-named visa applicant is not an orphan relative 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The review applicant submitted in support of the review, copies of the delegate’s decisions for the three visa applicants; a statement by the applicant’s representative that the three visa applicants are biological siblings; written emails from the representative seeking more time to provide documents and DNA and other evidence for the Tribunal. Further documents were submitted post-hearing including reports on the younger two of the applicants from the UNHCR. The Tribunal has had regard to information on the Tribunal file; and to Department files for each of the three applicants. The information on the three Department files includes information concerning the identity of the three children; statutory declarations by the review applicant and her husband [named]; a letter from the Office of the [Official A] of [Country 1] attesting to the children as refugees from South Sudan; and a submission by the applicant’s representative dated 30 September 2016, attaching documents in support of the identities and some circumstances of the sponsor, of [Guardian A], the visa applicants’ guardian in [Country 1], and the three visa applicants. This submission also describes circumstances in which the children are claimed to have become orphans; and a claim that the sponsor sends funds regularly for the children’s day to day living expenses; and a statement that DNA evidence will be provided in support of the case.  It also addresses the requirements for the grant of an orphan relative visa.

10. At the hearing the Tribunal asked the review applicant to explain the family links between her and the children and whether any DNA testing had been undertaken to establish a biological link between them, given that she claims they are her brother’s children. [The review applicant] stated that the children’s father, her [named brother], is deceased. He was a teacher in [Town 1] for a period of about a year. Because she was in Australia she did not know anything about what he was doing or which year that was. The children’s mother was a housewife and the family were together in [Town 1]. They had been in a refugee camp in [Country 1] at one point, she stated, but went back to Sudan, to [Town 2]. She said when she came to Australia in 2003, her brother was alive.

11. [The review applicant] stated the applicants’ parents were killed after being caught in an ambush near [Town 1]. They were trying to escape conflict in [Town 1] and were together. She stated the children were rescued in an army escort car when after the killings, one of the survivors took the children to Juba and went to the army barracks. There, they were asked who they knew and [Visa Applicant A] had given them the name of their aunt [Guardian A] in [Town 2]. The review applicant stated her own mother is still alive but is in Australia and recently went back to [Country 1] to see the children.

12. The review applicant stated the children cannot stay with their aunt in [Country 1] because she has her own children and is single handedly raising them. [The review applicant] said it is too much for [Guardian A] to look after the children of her extended family.

13. The Tribunal questioned [the review applicant] as to why no DNA evidence had been provided to the Department, or to the Tribunal on review, when there had been indications given to the Tribunal by her representative that it was being sought. The Tribunal said her representative had said she was in Africa partly to collect evidence yet it did not appear she had done so and had not been able to confirm that the children were genuine orphans, or that they were related to her, by producing DNA evidence. [The review applicant] addressed this by stating that DNA was not in their language, and while in [Country 1] she went to see the UNHCR, however she was still waiting to hear what she needed to do.  

14. [The review applicant] said in the hearing that she had been waiting to find out the “right pathway” but the UNHCR has still not said the children are orphans. Death certificates for the parents were not possible, she stated, because in South Sudan, it was not feasible to get them.

15. The Tribunal raised with the applicant’s representative that in October 2021 he had indicated to the Tribunal that he needed time to organise DNA testing and that additional time had been granted to allow this. The representative acknowledged he had been granted time to do so and stated that he took responsibility for failing to emphasise the need for DNA to the review applicant. He said the review applicant is still ready to do the DNA tests.

16. As indicated earlier, the Tribunal was unable to contact the children’s carer [Guardian A] by telephone on the day of the hearing and was also unable to contact the children, despite numerous attempts. The Tribunal granted the review applicant a further 14 days to provide written information from any of her witnesses and any other information in support of her case.

    UNHCR determinations

17. On 7 June 2022 the applicant’s representative provided the Tribunal copies of Best Interest Determinations from the UNHCR in [Country 1] for the children [Visa Applicant B and Visa Applicant C]. The reports cover reviews of the two minor children’s interests and are dated [in] March 2022 and [May] 2022 for the first and second reviews.  The reports indicate that in the view of the UNHCR officer, reunifying each of the children with their paternal aunt in Australia is a durable solution in the best interests of each of the two younger children. No report is submitted for [Visa Applicant A], who is no longer a minor. The Tribunal has carefully examined the two reports. They dutifully balance the relayed views of the subject children ([Visa Applicant C and Visa Applicant B] respectively), with family relationships, safety considerations, development and identity needs. [Visa Applicant A] spoke on behalf of his two younger siblings in interviews and further interviews were conducted with [Guardian A] and the sponsor [the review applicant]. The reports detail and analyse two options for care: one, that the subject child be reunified with the paternal aunt in Australia; and two, that the subject child is maintained in the current care arrangement. In each case, the subject child is stated to have expressed a preference for the Australian-based scenario. The Tribunal accepts that the reports are well reasoned and are the subjects of careful investigation by the UNHCR, however the Tribunal notes they do not establish a biological link between the sponsor and  any of the visa applicants.

    Is each of the applicants an orphan relative of an Australian relative?

18. The UNHCR reports do not provide any supporting evidence that the subject children are the biological children of [Father A] and [Mother A]. The author appears to accept as given, that the children’s father is [Father A variant] (sic), who is declared deceased; and [Mother A variant] (sic) is their mother, whose location is declared unknown. For the Tribunal, this raises questions as to whether one of the parents remains alive, or alternatively is presumed dead, and the Tribunal notes this differs from the consistent statements provided by the review applicant [named] and [Visa Applicant A], which is that both parents died in an ambush.

19. Information provided after the hearing includes responses to matters raised by the Tribunal after witnesses could not be reached by telephone during the hearing. [Guardian A] and [Visa Applicant A] each stated in response to the matters raised about the events central to the case that the children’s parents died in an ambush. The Tribunal notes that [Guardian A] indicates in her statement that the events took place around 25 February 2013. The delegate’s decision refers to the date of the ambush as being ‘on or around 18 January 2014’, which is also the date stated in information provided in support of the visa application and given in evidence by [the review applicant]. The Tribunal accepts that the statement from [Guardian A] that it happened in 2013 may have been made in error.

    No parental care – reg 1.14(b)

20. 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.

21. The Tribunal has carefully examined the evidence before it and is not satisfied on that evidence, that the children are orphans as claimed. While there is acceptance at the UNHCR in [Country 1] that the children are orphans or cannot be cared for by either parent, there is no supporting documentation confirming the parents’ deaths or disappearance that is before the Tribunal. Death certificates are not provided. The Tribunal accepts death certification may be difficult to acquire in South Sudan, however no other records, such as the army rescue details, or details of any proceedings or police reports, are provided. There are many assertions about the events, from several parties, and they are reasonably consistent, however without supporting evidence the Tribunal has no clear means of confirming that the children are orphaned as claimed and cannot be cared for by either parent. The Tribunal accepts that the children are related to one another, largely because their circumstances in [Country 1] tend to reflect the UNHCR assertion that they are siblings and given that its officers have interviewed each of them separately and together, the Tribunal is persuaded that this would have been readily evident, unlike their unconfirmed relationship with the sponsor. The Tribunal has considered the UNHCR analysis which mentions that [the review applicant] sends around $200 a month to the family in [Country 1] for their support, but this is not supported by financial information or receipts. Limited reliance can be placed on a letter from the [section] of the Office of the [Official A] of [Country 1] which declares that the children are orphans and are the biological relatives of [the review applicant]. The letter contains acknowledged errors of fact and the Tribunal notes the applicant has not disputed that the letter from the [Official A’s] Office is informed by the parties, rather than being based on or derived from official records or investigation.

    No DNA evidence

1. The absence of DNA evidence is a significant obstacle in the applicant’s case. The Tribunal recognises the potential for a slow process in acquiring DNA information in [Country 1], however is satisfied that it is possible to do so, as was suggested by their representative, and the applicant was afforded many months to acquire it. This dates arguably from the first enquiry from the Tribunal in January 2019 which sought information about the family unit, but certainly to October 2021 when time was granted in order to provide DNA reports. It is noted that the review applicant travelled to [Country 1] in December 2021 and remained there to February 2022, causing, among other things, the postponement of a hearing. This means in effect that she had several more months to acquire DNA evidence, including a long period in [Country 1], yet she appeared at the hearing not to have attempted to do so. [The review applicant] seems to have brought little information from her trip to [Country 1]. No photographs of her visit are provided, and she did not provide any other supporting evidence in support of her case arising from the trip, other than sending some vague emails to the UNHCR enquiring about the progress of her case. She states she was waiting to find out what to do over this time. Her representative has generously accepted responsibility for not pursuing the provision of DNA information. The Tribunal is satisfied that it afforded [the review applicant] extended opportunities and sufficient time to provide proof of a biological link between her and the children. The Tribunal is not satisfied on the evidence provided that a biological link is established.

2. For the reasons above, reg 1.14(b) was not met at the time of application and is not met at the time of decision.

   Has the applicant been adopted by the Australian relative?

   [Visa Applicant A]

3. 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.

4. There is no evidence before the Tribunal that the applicant has been adopted by the Australian relative. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

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

6. The Tribunal finds that the first-named 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.

7. 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.

   [Visa Applicant B]

8. Whether the [Visa Applicant B] is an orphan relative of an Australian relative has been considered in the context of the Tribunal’s findings in relation to her sibling, [Visa Applicant A], as detailed earlier in the decision relating to his case. The circumstances of [Visa Applicant B] are as explained in evidence given in consideration of [Visa Applicant A’s] circumstances. The representative has stated that he accepts the combined consideration of the circumstances, as in all respects but age, they pertain to the three children. The Tribunal, having considered the circumstances of [Visa Applicant B] in that context, finds reg 1.14(b) was not met at the time of application and is not met at the time of decision.

9. 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.There is no evidence before the Tribunal that the applicant has been adopted by the Australian relative. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

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

11. 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.

    [Visa Applicant C]

12. Whether the [Visa Applicant C] is an orphan relative of an Australian relative has been considered in the context of the Tribunal’s findings in relation to her sibling, [Visa Applicant A], as detailed earlier in the decision relating to his case. The circumstances of [Visa Applicant C] are as explained in evidence given in consideration of [Visa Applicant A’s] circumstances. The representative has stated that he accepts the combined consideration of the circumstances, as in all respects but age, they pertain to the three children. The Tribunal, having considered the circumstances of [Visa Applicant C] in that context finds reg 1.14(b) was not met at the time of application and is not met at the time of decision.

13. 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.There is no evidence before the Tribunal that the applicant has been adopted by the Australian relative. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

14. Given the findings above, cl 117.211 is not met and cl 117.221 is not met.

15. 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

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

    Meredith Jackson
    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.