2119403 (Migration)

[2024] AATA 3541

2119403 (Migration) [2024] AATA 3541 (12 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sulaika Dilruksheen Dhanapala

CASE NUMBER:  2119403

MEMBER:Justin Meyer

DATE:12 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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 12 April 2024 at 3:26pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – aunt and nieces/nephews by different siblings – applicants cannot be cared for by either parent because of death, permanent incapacity or unknown whereabouts – death certificates provided for one sibling and spouse, and no or conflicting documents as to status of others – conditions during civil war – country information – no suggestion that siblings and spouses alive – cultural adoption and financial support – DNA testing – best interests of applicants – applicants now turned 18 – decision under review remitted

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

CASES

Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 October 2021 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 28 February 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

   The applicant:

   (a) is an orphan relative of an Australian relative of the applicant; or

   (b) is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).

   cl 117.221

   The applicant:

   (a) continues to satisfy the criterion in clause 117.211; or

   (b) does not continue to satisfy that criterion only because the applicant has turned 18

   Regulation 1.14 Orphan Relative

   Reg. 1.14

   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.

4. The delegate refused to grant the visas, as follows:

   Given the lack of supporting evidence for the claimed whereabouts of the applicant's parents and contradictory nature of information provided , I am not satisfied that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. I am therefore not satisfied that the applicant satisfies Reg 1.14 (b).

5. There was no evidence presented to demonstrate that a formal adoption of the applicants by their sponsor has taken place, nor had customarily occurred, the delegate found in hs decision on the six visa applicants.

6. The review applicant appeared before the Tribunal on 14 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the review applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

7. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present cases is whether the visa applicants are orphan relatives.

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

10. 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.

11. ‘Orphan relative’ is defined in reg 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): reg 1.03.  In the present case, [the review applicant], an aunt, is the relevant Australian relative.

12. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative 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 – reg 1.14(a)(i)

13. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicants provide documentary evidence that they are all presently in the age range of 22 to 24 years 18 and 20, and this has been ascertained through passports and /or birth certificates for all the visa applicants. They were all under 18 at the time of application. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18.

14. 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 – reg 1.14(a)(ii)

15. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Having questioned the witnesses and examined all materials before me there is no evidence that the visa applicants have a spouse or de facto partner. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

16. 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

17. Having questioned the applicants and examined all materials before me there is no evidence that the review applicant (sponsor) is anyone else than the visa applicants’ aunt, who is an Australian citizen. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision. This includes DNA evidence which is discussed further below.

    No parental care – reg 1.14(b)

18. 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.

    Delegate’s decision

19. The delegate noted that in the sponsor’s affidavit declared that one of her brothers, [Mr B] is deceased. He is the claimed father of these applicants:

    ·[the first applicant]

    ·[the second applicant]

    ·[the third applicant]

20. The delegate stated that aside from the sponsor's statement, no other evidence had been provided to support the claims, for instance police records or missing persons reports. No other evidence has been provided to support the claimed unknown whereabouts or demise of the applicant's parents. The documents provided bear conflicting information, notably some portraying the parents of the applicant as missing while others indicates that the parents are deceased.

21. The sponsor also claimed that the mother of the applicant, [Ms C] passed away in [Year] just after giving birth to [the first applicant]. [Mr B], who is the claimed father of [the first applicant], is claimed to have died in [Year]. It is claimed that [Mr B] was married to [Ms C] who passed away in [Year].

22. No other evidence was provided to support these claims, for instance, in the case of [Ms C] death notifications, burial permits or doctors' reports; in the case of [Mr B], missing person's/police reports. In summary, no other evidence has been provided to support the claimed demise and missing status of the applicant's parents.

    Applicant’s response:

    To date the sponsor or the orphan children listed above have not seen their parent’s corpses. Neither parent have returned or contacted their children to date. No death certificates were issued to any of her relatives that disappeared during the Burundian civil war. It is claimed that during the civil war people disappear without a trace are either killed or buried discreetly. In reality neither relative is informed the reason for the killing or received death certificates.

    Since 2011 to date the sponsor has financially supported her nieces and nephews listed above. These funds were used to pay school fees, to purchase school related equipment’s, home rent, utility bills and food.

    In her absence in Burundi, she has appointed her friend and neighbour, [Madame D] to be the adult representative for the children at school events and medicals. This is not a formal appointment.

    The Ministry of Justice in Burundi has accepted the appointment of the sponsor as the children’s carer. An official document was obtained to show evidence after the refusal of the visa by the department on 21 October 2021.

23. The delegate noted the sponsor’s affidavit declaring that another of her brothers, [Mr E] is deceased. He is the claimed father of these applicants:

    ·[the fourth applicant]

    ·[the fifth applicant]

    ·[the sixth applicant]

24. The sponsor declared that the mother of the above three applicants, was [Ms F], who has been of unknown whereabouts since 2003. In the same affidavit, the sponsor stated that during the Burundian civil war (1993-2005), the parents of these applicants left the village where they were living but never came back and that all attempts to locate them have been unsuccessful.

25. The delegate stated that aside from the sponsor's statement, no other evidence has been provided to support these claims, for instance police records or missing persons reports. In summary, no other evidence has been provided to support the claimed unknown whereabouts or demise of the applicant's parents. The documents provided bear conflicting information, notably some portraying the parents of the applicant as missing while others indicates that the parents are deceased.

26. Applicant’s response:

    “The mother of the above children, [Ms F] and the father [Mr E] left the village during the Burundian Civil War in 2003. Their whereabouts are unknown since 2003 to date. The sponsor and her family in Burundi have tried to locate her brother and sister-in-law with no success. They are believed to be deceased.”

    Tribunal’s analysis

27. There is nothing before the Tribunal to suggest that any of the visa applicants’ parents are alive.

28. The review applicant (sponsor) gave consistent evidence that her brothers were of unknown whereabouts. They are presumed dead.

29. The review applicant (sponsor) told the Tribunal that she successfully obtained a [visa] in Australia at her first attempt. She is a married woman in her [Decade] and the couple have not had children of their own. She has taken responsibility for her nieces and nephews. She has visited Burundi although it is insecure for her and she has provided evidence of sending money regularly to the visa applicants.

30. Burundi has had numerous disappearances of people without a trace. There is ample country information to support such a portrait of Burundi, such as a recent US State Department report:

    Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings; forced disappearance; torture and cruel, inhuman, or degrading treatment or punishment by or on behalf of the government; harsh and life-threatening prison conditions; arbitrary arrest or detention; political prisoners or detainees; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; punishment of family members for offenses allegedly committed by an individual; serious restrictions on freedom of expression and media, including violence or threats of violence against journalists and censorship; substantial interference with the freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; serious and unreasonable restrictions on political participation; serious government corruption; serious government restrictions on or harassment of domestic and international human rights organizations; lack of investigation of and accountability for gender-based violence, including but not limited to domestic and intimate partner violence, sexual violence, child, early and forced marriage, and other forms of such violence; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons; the existence or use of laws criminalizing consensual same-sex sexual conduct between adults; and significant restrictions on workers’ freedom of association.[1]

    Country Reports on Human Rights Practices: Burundi

The review applicant (sponsor) told the Tribunal that one morning [Mr E] left the house and never came back. His wife [Ms F] went to the intelligence services to enquire but she never came back. No bodies had been found but as has been outlined to a Truth and Reconciliation Commission people are disappeared and have ben put into mass graves.

The Tribunal notes that there have been credible reports of this occurring such as

Authorities in Burundi have announced the discovery of more than 6,000 bodies in six mass graves.

The findings in Karusi province are the largest since the government launched a nationwide excavation in January.

(More than 6,000 bodies found in Burundi mass graves Al Jazeera 15 Feb 2020)[2]

[2] - :~:text=The%20remains%20of%206%2C032%20victims,mass%20graves%20in%20Karusi%20province.&text=Authorities%20in%20Burundi%20have%20announced,bodies%20in%20six%20mass%20graves.

The review applicant (sponsor) said that family had been to the hospitals and jails and there was no trace.

No formal adoption had taken place but there was a cultural practice where the aunt in her circumstances would assume a parental responsibility for the children, which is what she has done.

The review applicant (sponsor) said that the mother of [the first applicant] had died while giving birth. The mother of the other children ([the second and third applicants]) was not married to her brother but they had worked together. There has been consistent evidence that all parties’ parents are dead or presumed dead.

None of the six children are married or have partners. There are still studying. They send their bills to the review applicant (sponsor) and she pays them.

Evidence of [Ms A], the review applicant’s (sponsor’s) sister

[Ms A] lives in [Country] and she gave oral evidence by telephone.

The witness confirmed that the names of two of the mothers were [Ms C] and [Ms G] and that the ‘third mother’ was missing. She said that her sister had taken parental responsibility for all the children.  I note that death certificates for both [Ms G] and [Ms C] were provided to the Tribunal

DNA evidence

This evidence gives a basis for finding that the review applicant (sponsor) is the aunt of all six visa applicants.

A report of Genomic Diagnostics of 6 January 2020 states that there is moderate support for the proposition that the review applicant (sponsor) is the aunt of:

·[the third applicant]

·[the fourth applicant] 

·[the fifth applicant]

·[the sixth applicant].

The Genomic Diagnostics report of states that there is strong support for the proposition that the review applicant (sponsor) is the aunt of:

·[the first applicant] &

·

[the second applicant]

The DNA analysis was extremely supportive of the children of [Mr E] all being full siblings.

The DNA analysis was also extremely supportive of the children of [Mr B] being half siblings except for [the first applicant] who was judged as unlikely to be a half sibling.

In all, the DNA evidence supports the claims that the review applicant (sponsor) is the aunt of all the visa applicants. There is a possible explanation provided by the parties regarding [the first applicant] that he is the son of [Ms C] who is said to have passed away in [Year] just after giving birth to him and that his biological father was an unidentified person, although [the first applicant] was assumed to be or deemed to be the son of [Mr B]. This is not an implausible scenario and it does not exclude the possibility that the review applicant (sponsor) is an aunt, bloodlines not being a requirement for this family concept.

Conclusion

The Tribunal has sighted records of money transfers that have been made by the review applicant (sponsor) over a prolonged period, which supports claims that the parents have died or disappeared and there is no one else that can support the children.

The parties have given a consistent account of the death and /or disappearance of the parents. It was not possible to get through by telephone for evidence from [the first applicant] - he could not be reached. This is not entirely unexpected given the conditions in Burundi and I give the benefit of the doubt to the applicant here for being proffered as a witness. Their descriptions of the parties lives have been corroborated.  I am 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.

Therefore, the Tribunal is not satisfied - on the evidence before it - that there is a good reason to question the death or disappearance of the parents of the visa applicants.

I find the visa applicants cannot be cared for by either parent because each of them is either dead, or of unknown whereabouts.

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)

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. Given the hardship in Burundi and care offered by the review applicant (sponsor) this would be in their best interests.

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

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

3. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18. It follows that cl.117.221 is met.

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

   Certificate under 375A

5. There is a certificate on file specifying a need for non-release of confidential information, which bears no relevance to contestable issues in this case and it was not made known.

   DECISION

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

   Justin Meyer
   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.