2200040 (MIGRATION)

[2023] AATA 4406

2200040 (MIGRATION) [2023] AATA 4406 (18 DECEMBER 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Alexandra Elisabeth Marie Oliver (MARN: 1790427)

CASE NUMBER:  2200040

MEMBER:Maxina Martellotta

DATE:18 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the 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.

Statement made on 18 December 2023 at 1:21pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – relationship – uncle and nephews – combined hearing of separate reviews for visa applicant and brother – parents died when visa applicants young and visa applicants cared for and later formally adopted by review applicant – application made shortly before visa applicant turned 18 – refusal to take DNA test for personal reasons considered with other evidence – documentation and declarations by family members, friends and community leader – consistent and compelling evidence – best interests of visa applicants – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5CA(1)(b), (2), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04(1), 1.14(a)(iii), (b), 1.14A(2), Schedule 2, cls 117.111, 117.211(b), 117.221(b)

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 a decision made by a delegate of the Minister for Home Affairs on 26 October 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth).

2. The visa applicant applied for the visa on 11 October 2019. 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, which requires that, at the time of application, the visa applicant meets the definition of orphan relative as defined in reg 1.14:

   Reg 1.14 Orphan 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.

4. The criterion in cl 117.211 must continue to be satisfied at the time of decision, or it must be the case that the only reason the criterion is not satisfied is because the visa applicant has turned 18 (cl 117.221).

5. The delegate refused to grant the visa because the applicant did not meet cl 117.221 of Schedule 2 to the Regulations. The delegate’s reasoning was because the visa applicant refused to undertake a DNA test this raised doubts regarding the visa applicant’s parentage and on that basis the delegate ‘ …had concerns that one of your parents may be alive.’ On this basis the delegate concluded that the visa applicant did not satisfy the definition of orphan relative (reg 1.14 (a) (iii) and (b)) and cl 117.211 could not be satisfied.

6. In this matter the Tribunal notes that the review applicant has sponsored two visa applicants,[the applicant in this matter] and [the applicant in a separate review] on the basis that each of the visa applicants is his orphan relative. Both visas were refused by a Department delegate.  The review applicant lodged two separate review applications but requested that the hearing for both matters be heard at the same time given that each application dealt with the same issues and evidence. The Tribunal granted the request.

7. The review applicant appeared before the Tribunal on 28 November 2023 to give evidence and present arguments. In addition to oral evidence and submissions received at hearing, the Tribunal has also considered materials contained in the Department file and materials provided to the Tribunal by the review applicant (including a copy of the delegate’s decision). In the Tribunal’s assessment the review applicant was a credible witness, his evidence was cogent and consistent with other materials before the Tribunal.

8. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the visa applicant meets the definition of orphan relative.

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

11. 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.

12. As noted, ‘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] is the relevant Australian relative.

13. The review applicant provided the following evidence which provides an overview of the circumstances which led to the visa application being lodged:

    a)He is the paternal uncle of [the visa applicant] and of [the visa applicant’s sibling].

    b)The biological father of his nephews was his older brother [Mr A].

    c)His brother did not always meet with the approval of their parents as he renounced his Catholic faith.

    d)His brother was married (through customary rites) to [Ms B].

    e)His brother and [Ms B] had two sons including the visa applicant.

    f)He (the review applicant) was living and studying in Nigeria at the time of his brother’s wedding and when each of his nephews was born.

    g)He is aware that when his eldest nephew [the applicant] was born, [Mr A] had suggested that he suspected his wife had been unfaithful and perhaps [the applicant] was not his son.  No one really understood why [Mr A] was making these suggestions. He was working away from home at various times and perhaps he started to become jealous. Ultimately there was a family discussion, and it was agreed that there was no basis to his suspicion as [Ms B] was always living within the family home.  By the time [the applicant] was born the issue had been resolved and no one ever questioned his paternity.

    h)In 2003 it became obvious to the family and local community that [Mr A and Ms B] were unwell.  They were diagnosed as HIV positive, as they became increasingly unwell their children were cared for by the family but mainly by the review applicant’s mother.

    i)[Mr A and Ms B] both died in 2004. Their children continued to live with their paternal grandparents. The review applicant as the eldest surviving son took on a ‘father’ role for his nephews.

    j)When he married in 2008, the review applicant found work in [Region]. His wife remained in Nigeria and both nephews moved into the review applicant’s family home and lived with his wife.  The review applicant and his wife decided to apply for formal adoption of the nephews and orders were made in 2012.

    k)This was the arrangement until the review applicant and his wife were granted visas to work and live in Australia. He continued to financially support his nephews but could not afford for them to make the move to Australia.  He applied for the children to be granted visitor visas but that was refused, so [the children] returned to live with their grandmother and grandfather.

    l)In 2018 the visa applicant’s grandmother died.  The care needs of his nephews became accentuated as their grandfather was aging and there was limited capacity for the review applicant’s siblings to take care of them.

14. The Tribunal considered the question of whether the visa applicant satisfies the definition of orphan relative.

    Age – reg 1.14(a)(i)

15. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. According to documents provided in support of his visa application the visa applicant was born on [Date].  His application was lodged on 11 October 2019 [before] his 18^th birthday. At the time of application, the visa applicant was 17 years of age and had not yet turned 18.  At the time of decision, the review applicant is [Age] years of age.

16. Reg 1.14(a)(i) was met at the time of application but is not met at the time of decision only because the visa applicant has turned 18.[1]

    Spouse or de facto partner – reg 1.14(a)(ii)

    [1] 117.221(b).

17. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. At hearing the review applicant stated in evidence that the visa applicant has never had a spouse or de facto partner. This evidence is consistent with claims made by the visa applicant in his visa application. The Tribunal is satisfied that reg 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)

18. 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.

19. The review applicant is an Australian citizen by grant acquired on 21 November 2018. A copy of the certificate of Australian citizenship was provided to the Department. The Tribunal is satisfied and finds that the review applicant is an Australian citizen.

20. The review applicant asserts that he is the visa applicant’s paternal uncle.  His evidence was that the visa applicants’ biological father ([Mr A]) was his brother.  The review applicant gave evidence that he and [Mr A] shared the same biological parents.  They grew up in the same household. Consistent with that evidence were documents provided to the Department in support of the visa application including his birth attestation and his brother [Mr A]’s baptism documents which identify their parents as [Mr C and Ms D].

21. In this case the visa applicant was invited to undertake a DNA test however he refused to do so. For this reason, the delegate concluded that they place limited weight upon other evidence which the review applicant asserts confirms that he is the visa applicant’s uncle.

22. The visa applicant provided a statement to the Department advising that he was afraid to undertake a DNA test because of past family circumstances and stories surrounding his birth and he would rather not take the test than ‘lose the rest of his family’.  The review applicant in his evidence said that he was totally surprised by his nephew’s decision not to undertake a DNA test. He said that up until that point in time he was not aware that the visa applicant had heard any of the family stories about the issues his father had raised prior to his birth. He said that his nephew told him that he had heard stories growing up because they lived in a small community, and he is worried that a negative test may result in him no longer being part of the family.

23. The review applicant said that there is no question that the visa applicant is his brother’s son and his reluctance to take a DNA test should not be a reason to refuse the visa when he has provided other compelling evidence of his nephew’s paternity.  That evidence includes:

    a)His oral evidence of his knowledge of the birth of his nephew and his circumstances of having been raised and accepted as his brother’s child.

    b)A copy of the visa applicant’s birth certificate which names his biological parents as [Mr A and Ms B].

    c)Sworn declarations by community members, family members and friends that they had known the visa applicants’ parents and know him to be their child.

    d)Adoption orders made in 2012 which were based upon the Court being satisfied that the visa applicants’ biological parents identified as [Mr A and Ms B], were deceased.

24. Further evidence included in the materials before the Tribunal included affidavits and statutory declarations provided by:

    a)    The visa applicant’s paternal grandfather (15 December 2021) who declared that his son [Mr A] and his son’s wife [Ms B] had two sons (the visa applicant and his brother) prior to their death.

    b)    The brother of [Ms B] who declared (16 December 2021) that his sister was married to [Mr A] and that they had two children and that his sister and her husband both passed away.

    c)    A family friend and former resident of the village where the visa applicant and his brother were born.  This person ([Ms E]) declares (6 December 2012) that she personally knew [Mr A and Ms B], was aware that they had two young children whom she identifies as the visa applicant and [his brother]  and was aware of the circumstances in which their parents passed away.

    d)    A family friend ([Mr F]) who declared (12 November 2021) his knowledge of the family’s circumstances and meeting the visa applicant and his brother at their grandmother’s funeral in 2019.

    e)    A family friend ([Mr G]) who declared (17 October 2023) that he personally knew the visa applicant’s parents and visited the family in 2004 following the deaths of [Mr A and Ms B]. This person declares that he knows that they were the parents of the visa applicant and his brother.

    f)     A family friend ([Mr H]) who declared (17 November 2023) that he is a family friend who was acquainted with the parents of the visa applicant and his brother and was aware they both became ill and passed away in 2004. He declares that the visa applicant and his brother were known to be the biological children of [Mr A and Ms B].

    g)    Declaration by the Traditional Ruler of the community where the visa applicant lived with his family, confirming that the family of [Mr C and Ms D] (the review applicant’s parents) consisted of [children] which included [Mr A] their eldest son who died in 2004, that prior to his death [Mr A] was marred to [Ms B] and they had two children, the review applicant and his brother and that the review applicant is uncle to both of those children.

25. Other documents before the Tribunal included copies of the visa applicant’s birth certificate which names his parents as [Mr A and Ms B] and a copy of the visa applicant’s adoption certificate.

26. In this case the Tribunal is satisfied that notwithstanding the absence of DNA testing, on balance the weight of the available evidence supports the conclusion that the biological parents of the visa applicant were [Mr A and Ms B]. The Tribunal in making this finding of fact also notes that Department policy provides that DNA test results are to be considered in a careful and objective manner and in conjunction with all other available evidence. Further, in any event a department officer should note that:

    17.2      If testing is not undertaken

    Officers should note that they have no legal power to compel an applicant to undergo    DNA testing. It is recognised that the costs of    DNA testing may be prohibitive for some applicants. It is for this reason that, in reaching a decision on a case, little weight should be given to an applicant’s decision not to undergo testing.

27. The Tribunal is satisfied and finds that the review applicant is the brother of [Mr A] and as such he is the visa applicant’s uncle. The Tribunal concludes that the visa applicant is a relative of the review applicant who is an Australian citizen.[2]

    [2] reg 1.03.

28. The Tribunal is satisfied that reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

29. 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.

30. The visa applicant claims that his biological parents are both deceased. According to the oral evidence at hearing and consistent with materials presented to the Tribunal and to the Department, the biological parents of the visa applicant were [Mr A and Ms B]. The visa applicant’s mother died in April 2004 and his father died in December 2004. Copies of their respective death certificates and medical notes confirmed that each of the parents were under the care of [named Hospital] until their respective deaths.

31. The review applicant gave evidence that his brother and his sister-in-law contracted HIV and both died within a few months of the other.  He explained that at the time the visa applicant was still very young and eventually he and his wife decided to formally adopt the visa applicant.

32. As noted, the definition of orphan relative 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. In this case there is evidence that the review applicant has adopted the visa applicant. A sealed copy of orders dated [January] 2012 made in the Magistrates’ Court of Anambra State of [District] recites that full parental powers are transferred to the review applicant and his wife. Materials provided in support of the adoption application included copies of the visa applicant’s parents’ death certificates and medical evidence.

33. Reg.1.04 provides the definition of adoption. The key provisions requires that the adopter has assumed a parental role; that role was assumed before the adoptee attained 18 years of age and the role was assumed under certain arrangements including formal adoption arrangements under foreign law where the adoption results in the legal recognition of the adopters as the parents in place of the previously recognised parents.

34. The Child’s Rights Act 2003 provides for the process of adoption in those states in Nigeria which have adopted the legislation.  The Nigerian jurisdiction of Anambra State has adopted (domesticated) the legislation[3]. Section 126 of that Act provides for an application for adoption. Section 130 of the Act provides that the court may upon application make an order of adoption. Section 141 of the Act states that upon making of the order all rights, duties, obligations and liabilities of the parents of the child are extinguished and exercised by the adopter.

    [3] The Child Rights Act: A Critical Appraisal of the Child’s Rights Act/Laws in Nigeria How Effective n South Eastern States  Ikpeze and Oti-Onyeama JHRCLI Vol 1 Nov 2021

1. On the presented evidence the Tribunal is satisfied and finds that the review applicant and his wife assumed a parental role in relation to the visa applicant and that role was assumed before the visa applicant attained 18 years of age and in accordance with formal arrangements under Nigerian law which legally recognised the review applicant and his wife as the visa applicant’s parents.

2. The Tribunal is satisfied and has found that the biological parents of the visa applicant were [Mr A] who died in December 2004 and [Ms B] who died in April 2004.  The Tribunal has also found that the review applicant and his wife formally adopted the visa applicant in January 2012.

3. Section 5(1) of the Act provides that the term ‘parent’ is defined by reference to the definition of a child in section 5CA of the Act.  That definition is non-exhaustive. Section 5CA(1)(b) of the Act expressly includes a person is an adopted child (in accordance with reg.1.04). In this regard reg 1.14A(2) specifies for the purposes of s 5CA(2) that a child that is formally adopted in accordance with reg 1.04(1)(a) or (b) is the child of the adoptive parents and not the child of any other person (including the child’s parent or adoptive parent before the adoption).

4. The Tribunal concludes that as at the time of application and at the time of decision, the legally recognised parents of the visa applicant are the review applicant and his wife. This means then that reg.1.14(b) is not met but this is only because he has been adopted by the review applicant and his wife.

5. 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.

6. In this matter, the visa applicant was adopted by the review applicant in January 2012. The Tribunal finds that the relative relationship between the review applicant and visa applicant exists outside of and predates the adoption.  The Tribunal finds that the visa applicant has been adopted by the review applicant and concludes this would be the only reason why he would not meet the definition of orphan relative.  Accordingly, cl 117.211(b) is met, and continues to be met at the time of decision.

   Best interests – reg 1.14(c)

7. 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.

8. The review applicant provided the following evidence:

   a)The review applicant and his brother were in effect cared for by their paternal grandparents. They were both very young when their parents became unwell and at the time because of their diagnosis they were kept separate and isolated.

   b)Following their deaths, their children continued to be cared for by their paternal grandparents, mainly by their paternal grandmother.

   c)When the review applicant married in 2008, he and his wife became increasingly involved in the care of his nephews.  The nephews lived with the review applicant’s spouse from 2008 to 2012 whilst the review applicant was working in [Region] until such time that he and his wife moved to Australia.

   d)In 2012 his nephews moved back to the care of the review applicant’s mother. However, when his mother passed away in 2018, the family recognised that there was a need to change the care arrangements. This is because their grandfather cannot take care of them, and they are unable to live long term with their aunt (the review applicant’s sibling).

   e)As the eldest surviving son, the review applicant is seen as the person who is to take on responsibility for raising his brother’s children and this is also reflected in the adoption orders.

   f)The review applicant has concerns about the visa applicant and his brother remaining in Nigeria. The visa applicant and his brother are both studying. The review applicant has been financially supporting his nephews since they became orphaned, this includes meeting the day-to-day expenses and their education costs.

   g)It is in the visa applicant’s best interests to join the review applicant and his family in Australia. They are his adopted children, and he has always taken responsibility for them.  There are intra-country security and civil unrest issues which arise from time to time in the area where they live in Nigeria. There are always concerns that conflict could escalate and that as young men they may be recruited into military groups or separatist operations against their will.[4]

   [4] This evidence is consistent with DFAT Travel Advice.

9. 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 visa applicant.

10. The Tribunal is satisfied that reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

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

12. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, but only because the visa applicant has turned 18. It follows that cl 117.221 is met.

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

    DECISION

14. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the 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.

    Maxina Martellotta
    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.