1901709 (Migration)

[2021] AATA 859

1901709 (Migration) [2021] AATA 859 (26 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901709

MEMBER:P. Maishman

DATE:26 March 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 26 March 2021 at 12:05pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – review applicant’s status as aunt – parents deceased – evidence of death provided – Adoption Attestation Letter provided – orphan relatives of Australian citizen – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.14; Schedule 2, cl 117.211

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 22 November 2018 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 7 March 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 (the Regulations). Relevantly to this case, they include cl.117.211.

4. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied they are orphan relatives, as defined, of an Australian relative.

5. The review applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.

7. The review applicant was represented by her registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal received a copy of the Departments files.

10. The review applicant gave the Tribunal copies of the delegate’s decision records. The delegate outlined the background to the application. In summary the review applicant sought to sponsor the visa applicants for the visas on the basis their parents [were] unable to care for them because they are deceased. The delegate was not satisfied the visa applicants parents are deceased.

11. The Tribunal acknowledges the difficult subject matter confronted by the review applicant and the distress she expressed giving oral evidence to the Tribunal. Her evidence to the Tribunal was candid and direct. The Tribunal finds the review applicant be a credible witness and accepts her evidence on that basis.

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

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

13. 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 are not orphan relatives only because they 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 he or she has turned 18: cl.117.221.

14. ‘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.

15. In the present case, [the review applicant] is the relevant Australian relative.

16. For the reasons below, the visa applicants are orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.

    Age – r.1.14(a)(i)

17. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

18. The date of birth of the first named visa applicant [Applicant 1] is recorded on her visa application as [Date 1]. The Department’s file contains an age assessment certificate from the National Medical Commission in the Republic of South Sudanese Ministry of Health; a passport and nationality certificate issued by the South Sudanese Ministry of the Interior and a UNHCR registration showing her date of birth to be [Date 1]. The Tribunal accepts on the evidence [Applicant 1] was born on [Date 1]. The Tribunal finds at the date of application [Applicant 1] was 16 years old and had not turned 18. The Tribunal finds [Applicant 1] turned 18 on [date].

19. The date of birth of the third named applicant [Applicant 3] is recorded on his visa application as [Date 2]. The Department’s file contains an age assessment certificate from the National Medical Commission in the Republic of South Sudanese Ministry of Health; a passport and nationality certificate issued by the South Sudanese Ministry of the Interior and a UNHCR registration showing his date of birth to be [Date 2]. The Tribunal accepts on the evidence [Applicant 3] was born on [Date 2]. The Tribunal finds at the date of application [Applicant 3] was 13 years old and had not turned 18. At the time of this decision [Applicant 3] is 17 years old.

20. The date of birth of the second named applicant [Applicant 2] is recorded on her visa application as [Date 3]. The Department’s file contains an age assessment certificate from the National Medical Commission in the Republic of South Sudanese Ministry of Health; a passport issued by the South Sudanese Ministry of the Interior; and a UNHCR registration showing her date of birth to be [Date 3]. The Tribunal accepts on the evidence [Applicant 2] was born on [Date 3]. The Tribunal finds at the date of application [Applicant 2] was 9 years old and had not turned 18. At the time of this decision [Applicant 2] is 12 years old.

21. Accordingly 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)

22. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.

23. The review applicant gave oral evidence neither of the visa applicants have a spouse or de facto partner. She is most concerned about the welfare of her oldest niece [Applicant 1], who has become marriageable age. The review applicant told the Tribunal [Applicant 1] is considered a tradable asset and her half-brothers want to marry her off so they can receive a dowry. The review applicant continues to pay money so that they do not marry her off.

24. There is no evidence before the Tribunal suggesting either of the applicants have a spouse or de facto partner. The Tribunal accepts the review applicant’s oral evidence that the visa applicants do not have a spouse or de facto partner.

25. The Tribunal finds the visa applicants do not have a spouse or de facto partner.

26. 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)

27. 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. The definition of relative includes an aunt.  

28. The review applicant did not declare the visa applicants’ mother to be her sister when she arrived in Australia. The review applicant explained she was about [age] years old when she arrived in Australia with her older half-sister who completed the visa application. The Tribunal required a DNA test to support the claimed familial link between the visa applicants and the review applicant. The Tribunal received DNA test results and associated reports on 26 March 2021 confirming the review applicant is the full biological aunt of each of the visa applicants. The review applicant claims she obtained Australian citizenship in 2002. File notes on the Department’s file indicate the review applicant provided a copy of her citizenship certificate. The Tribunal received a copy of her passport confirming she is an Australian national.

29. The Tribunal finds the visa applicants are relatives of the review applicant who is an Australian citizen.

30. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

31. 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.

32. The applicant’s claim their mother to be [name] and their father to be [name]. The applicant’s claim both their parents are deceased. 

33. The age assessment certificates from the National Medical Commission in the Republic of South Sudanese Ministry of Health for each of the visa applicants identify their mother to be [name] and their father to be [name].

34. The Tribunal received a death certificate confirming [their mother] died [in] October 2012. The document has been certified as authentic by the Department. The Tribunal satisfied the visa applicants mother is deceased.

35. The Tribunal finds the visa applicants cannot be cared for by their mother [because] she has died.

36. The Tribunal considered the evidence about the death of the visa applicants’ [father]. The first named visa applicant gave the Department a letter saying she was present when her father died and when he was buried in the compound of their home in [a] village outside Rumbek. She was young at the time of his death and later learned he died in August 2011.

37. The review applicant gave oral evidence that she had attempted to get better evidence of [their father]’s death. The review applicant denies [the father] is alive and caring for the visa applicants. She says her sister had told her he was an alcoholic and that is what killed him. There is no procedure for an autopsy to be conducted in South Sudan and deceased people are routinely buried within the family compound. It was very dangerous to travel to Rumbek because of ongoing war between the locals in the area. Her half-brother had, at the review applicant’s request, attempted to go to Rumbek to get better evidence of [the father]’s death. She says her half-brother was killed after he got to Rumbek. The review applicant said she felt guilty and was visibly distressed.

38. The Tribunal received a document titled Adoption Attestation Letter signed by John Duoth Kulang, Judge of the Attestation Office, State Directorate of Legal Affairs, Rumbek South Sudan. The letter certifies two witnesses [confirm] [the] biological father of the visa applicants, died in August 2011 and is buried in his compound.

39. The Tribunal gives weight to the review applicant’s oral evidence supported by the Adoption Attestation Letter as evidence the visa applicants father [died] in 2011.

40. The Tribunal finds the visa applicants cannot be cared for by their father [because] he is deceased.

41. Accordingly, 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)

42. 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 applicants.

43. There is no evidence before the Tribunal that suggest there is a compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicants.

44. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

45. Given the findings above, cl.117.211 is met.

46. The Tribunal finds that the second and third named visa applicants continues to satisfy the criterion in cl.117.211. The first named visa applicant does not continue to satisfy the criterion in cl.117.211, but only because she has turned 18.

47. It follows that cl.117.221 is met.

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

    DECISION

49. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants 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.

    P. Maishman
    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.