2200197 (Migration) - [2024] AATA 616

2200197 (Migration) [2024] AATA 616 (23 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2200197
MEMBER:Maxina Martellotta
DATE:23 February 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the directions that:
· The primary visa applicant [Mr A] meets the following criteria for a Subclass 117 (Orphan Relative) visa:
o cl 117.211 of Schedule 2 to the Regulations; and
o cl 117.221 of Schedule 2 to the Regulations.

· The primary visa applicant [Ms B] meets the following criteria for a Subclass 117 (Orphan Relative) visa:
o cl 117.211 of Schedule 2 to the Regulations; and
o cl 117.221 of Schedule 2 to the Regulations.

Statement made on 23 February 2024 at 9:44am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – paternal aunt of the applicants – results of DNA testing provided – biological parents of the primary visa applicants died in August 2014 – death certificate provided – no parental care – visa applicants have turned 18 – sibling relationship proven – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03,1.14, 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth).
The visa applicants applied for the visas on 5 December 2018. 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 (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.
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).
The delegate refused to grant the visas with respect to each of the primary visa applicants because they were not satisfied that in each case the applicant met cl 117.221 of Schedule 2 to the Regulations. The delegate concluded that they were not satisfied that any of the applicants are an orphan relative of an Australian relative. The reasoning of the delegate appears to rest upon inconclusive DNA test results, which left the delegate ‘with concerns that the applicant’s parents may still be alive.’ The delegate also did not accept other evidence provided by the applicants in support of their claims.
Background
[Mr A] and [Ms B] made separate visa applications. [Ms C] is a dependant applicant in [Ms B]’s (combined) application.
The following claims are made in separate visa applications lodged on 5 December 2018:
a)[Mr A] (born [date]) and [Ms B] (born [date]) are siblings. Their parents are [Mr D] and [Ms E], who are deceased.
b)[Ms C] (born [date]) is the child of [Ms B]. Her biological father is unknown. She makes her claim as a dependent applicant who is a member of [Ms B]’s family unit.
c)The review applicant ([Ms F]) is the paternal aunt of [Mr A] and [Ms B] and great aunt of [Ms C]. She is the sibling of [Mr D]. [Ms F] is the sponsor in the visa applications.
The applicants and sponsor were invited to undertake a DNA test, which they voluntarily undertook. The DNA report dated 10 September 2020 noted the following:
a)[Ms F] is a full biological aunt of [Mr A].
b)[Ms B] is the biological mother of [Ms C] to the probability of 99.999999994945%.
c)The relationship between [Ms F] and [Ms B] is inconclusive and further testing is recommended where possible.
d)The relationship between [Ms B] and [Mr A] is inconclusive and further testing is recommended where possible.
On 23 September 2020 the Department wrote to the DNA laboratory seeking clarification as to what further testing was required. No response to that request was provided.
The Department wrote to the applicants on 20 March 2021 inviting comment on adverse information, namely the inconclusive DNA results.
The applicants’ representative provided a written response on 20 March 2021. Amongst other things, those submissions stated that:
a)[Mr A] and [Ms B] have known each other their entire lives to be siblings. [Ms B] has no reason not to believe that [Mr A] is her brother.
b)The DNA report has not made a definitive finding, rather the results are inconclusive. It is of limited probative value.
c)The totality of other evidence presented to the Department supports the claims. If [Ms B] is not found to be the biological child of [Mr D], she would meet the definition of being his adopted child given evidence that he is the only father she has known and was raised by him together with her mother. In any event, she is presumed to be the child of the parents’ married relationship.
On 29 October 2021 the delegate made the decisions to refuse the visa applications.
The review applicant appeared in person before the Tribunal on 13 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the primary visa applicants [Mr A] and [Ms B]. The Tribunal was assisted by an interpreter in the Liberian English and English languages. Other evidence before the Tribunal included materials in the Department files and materials provided to the Tribunal. The review applicant also provided the Tribunal copies of the delegates’ decisions.
For the reasons below, the primary visa applicants [Mr A] and [Ms B] are each orphan relatives of an Australian relative at the time of application and at the time of this decision. The Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.
For the following reasons, the Tribunal has concluded that the matters should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Ares the visas applicant 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 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. A ‘half’ relationship arises where two people are related by only one parent. In Mercado v MIAC[1] the question of whether a reference to ‘brother’ excluded or included a ‘half-brother’. The Court accepted the Minister’s submission that there was no apparent policy reason to exclude a half-brother. The reasoning in that decision was adopted in the matter of Claridge v MIBP.[2]
[1] Mercado v MIAC [2007] FMCA 1216.
[2] Claridge v MIBP [2013] FCCA 1953.
In the present case, the review applicant [Ms F] is the relevant Australian relative. She claims that she is the half-sister of the father of the primary visa applicants, [Mr A] and [Ms B] – namely, that she is their paternal aunt.
At hearing, the review applicant provided the following evidence about the circumstances relevant to the visa applications:
a)She is the paternal aunt to the primary visa applicants [Mr A] and [Ms B]. She is the paternal great aunt to the secondary visa applicant [Ms C].
b)Her brother is [Mr D]. She and her brother share the same biological father, [Mr G] .
c)In 1996 she moved from Liberia to Ghana. She maintained contact with her brother and knew that he had partnered with [Ms E]. She believes that they were married in a traditional ceremony.
d)Through her contact with her brother, she was aware that her brother and [Ms E] are the biological parents to two children, [Mr A], born in [year], and [Ms B], born in [year]. The children lived with their parents in Liberia.
e)She migrated to Australia in 2006 and in 2012 she returned to Liberia and visited her brother, his wife and two children. This was the first time she personally met [Mr A and Ms B]. They were all living together in a rental property.
f)She would speak with her brother from time to time. She is aware that her brother and his wife contracted the Ebola virus and they both died in August 2014. She was not immediately aware of the situation and what had happened to [Mr A and Ms B].
g)She was unsuccessful in attempts to contact her brother but at the time events in Liberia were chaotic due to the Ebola outbreak.
h)A friend from school, [name], contacted her after 2015, she thinks, and told her that she had found her niece and nephew and that they were in a bad situation. Her niece [Ms B] had been sexually assaulted and had given birth to a child.
i)She arranged for her friend to locate a rental property for [Mr A and Ms B] and she started to financially support them. She has continued to financially support both of them since that time and has returned to Liberia on several occasions to visit them.
j)There has never been any discussion or assertion that her brother was not [Ms B]’s father. Her brother has raised [Ms B] together with his wife from her birth until their death in 2014.
k)Her nephew and niece do not have any family in Liberia. They are part of her family, and she wants to be reunited with them. Liberia is not a safe country, and she wants her niece and nephew to have the opportunities available to them in this country.
Age – reg 1.14(a)(i)
Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.
According to the documents provided in support of [Mr A]’s visa application, he was born on [date]. This is evidenced by a birth certificate and his Republic of Liberia passport, copies of which were provided to the Department. As noted, his visa application was lodged on 5 December 2018. At the time of application, he was [under 18]. At the time of decision, he is [over 18] years of age.
According to the documents provided in support of [Ms B]’s visa application, she was born on [date]. This is evidenced by a birth certificate and her Republic of Liberia passport, copies of which were provided to the Department. As noted, her visa application was lodged on 5 December 2018. At the time of application, she was [under 18] years of age. At the time of decision, she is [over 18] years of age.
The Tribunal notes that the delegate in the decisions ‘placed significant weight not in favour of the applicant on this birth certificate.’ It appears that the birth certificates in each case were certified some years after the relevant dates of birth.
At hearing, the review applicant gave evidence that in Liberia birth certificates are not always issued at the time of birth, particularly if the child is born at home. She also said it is not uncommon for certificates to become lost, especially in the context of country upheavals (such as that which arose during Ebola outbreaks) when people become displaced. The review applicant stated that she applied for her birth certificate to be re-issued and she also paid for the visa applicants to apply for their birth certificates as part of preparing for the visa applications.
In response to questions asked by the Tribunal, the review applicant provided a description of the process by which she applied for a birth certificate. She said she applied to the Ministry of Health, and then had to be fingerprinted and attend an interview. She did this on one of her trips to Liberia. The Tribunal notes that the issue date of her birth certificate is consistent with the dates of overseas travel in her movement record. The review applicant said that the visa applicant [Mr A] applied for his birth certificate and assisted his sister [Ms B] in applying for hers.
The Tribunal also took evidence from the visa applicant [Mr A]. His evidence was consistent with the review applicant. He confirmed that he applied for the birth certificates for himself, his sister and niece. He had to apply to the local government authority and underwent an interview.
The birth certificates for each of the visa applicants are similar in appearance. They are each signed by the Principal Registrar RL with a stamp (Office of the principal registrar BVHSRL) and certified to be a true copy of the record of birth on file in the Ministry of Health and Social Welfare, Bureau of Vital Statistics in accordance with the Public Health Law of Liberia. S51.1 of that document establishes an office of Vital Statistics charged with administration of the registration of births and deaths. S51.8 provides, amongst other things, for a certified copy of any entry in the register to be obtained and that a copy of a vital statistic record of a birth or death, when properly certified, shall be prima facie evidence of the facts stated therein.[3]
[3] wtacclbr15_leg_42.pdf (wto.org)
On balance, the Tribunal accepts the evidence of the dates of birth as recorded in the birth certificates provided to the Department in support of the visa applications, which, as noted, are consistent with the information in the passports of the visa applicants.
The Tribunal is satisfied that the visa applicants [Mr A] and [Ms B] each satisfy reg 1.14(a)(i) at the time of application. The Tribunal is also satisfied that in each case, it is not met at the time of decision only because the visa applicant has turned 18.[4]
Spouse or de facto partner – reg 1.14(a)(ii)
[4] Clause 117.221(b).
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 applicants [Mr A] and [Ms B] have never had a spouse or de facto partner. This was also the evidence of [Mr A] and [Ms B]. This evidence is consistent with claims made by the visa applicants in their respective visa applications.
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 with respect to both primary visa applicants.
Relative – reg 1.14(a)(iii)
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. As noted, the definition of a relative means a grandparent, grandchild, aunt, uncle, niece or nephew.
The review applicant is an Australian citizen by grant. According to Department record this was acquired on 29 May 2008. A copy of her Australian passport was provided to the Department. The Tribunal is satisfied and finds that the review applicant is an Australian citizen.
The review applicant asserts that she is the paternal aunt to the two primary visa applicants. She states that her elder brother was [Mr D] and that they had the same biological father, [Mr G], but different mothers. Copies of birth certificates provided to the Department record the review applicant and [Mr D] as having the same father.
The review applicant’s evidence that she is the aunt of [Mr A] is supported by the results of DNA testing, which concluded that she is a full biological aunt of [Mr A].
In this case, [Ms B] voluntarily undertook a DNA test. The result of that test was inconclusive regarding her relationship with the review applicant. The review applicant told the Tribunal that despite the test being inconclusive, this does not mean that [Ms B] is not her niece and that there was other compelling evidence to support that relationship:
As noted, her evidence was that she was aware from her brother that he and his partner [Ms E] were the parents of two children, [Mr A and Ms B]. The children were raised by their parents until their deaths in 2014. She met both children in 2012 and since finding out about their circumstances has been financially supporting them. There has never been any suggestion that her brother was not [Ms B]’s father.
The Tribunal received evidence from [Mr A], who stated that:
a)He was born in [year] and he has always known [Ms B] to be his younger sister. They lived with their parents [Mr D] and [Ms E]. His mother told him that he and his sister were born at home.
b)He has a recollection of his aunt, the review applicant coming to visit them in 2012.
c)When his parents died, he was away at school and immediately returned home. His sister was living at home. They were both still very young. Their parents both died at home in August 2014. Their bodies were removed by authorities.
d)As he and his sister had no family or relatives from either his mother or father’s side to care for them they were placed in the care of a neighbour. He did not know how to contact his aunt as he was still quite young. It was during this time his sister was sexually assaulted.
e)A woman who knew his aunt came across them. He cannot recall exactly when. She contacted his aunt and from that time their aunt has been providing financial support and accommodation for himself, his sister and her child.
The Tribunal received evidence from [Ms B]. She stated that:
a)She was born in [year]. Her elder brother [Mr A] is her only sibling. Their parents are [Mr D] and [Ms E]. She, her brother and parents lived together until her parents died from Ebola in 2014.
b)She does not recall much from that time.
c)Her aunt is the review applicant, and she has been taking care of her and her brother. Her aunt has visited her and her brother in Liberia.
According to the delegate’s decision, they decided that [Ms B] did not meet the visa requirement because whilst their birth certificates indicated that she and the visa applicant [Mr A] are full siblings, but this was not supported by the DNA results.
The Tribunal observes that the DNA test results for [Ms B]’s sibling and aunt/niece relationships were inconclusive. The report stated that further testing was recommended where possible. At hearing the review applicant confirmed that neither she nor [Ms B] were invited to undertake any further testing. The Tribunal notes that there appears to have been no response or follow up to the Department’s email to the DNA lab querying what further testing would be required.

According to information provided by DNA testing services[5], sibling testing, and aunt/uncle testing can be less conclusive than parentage testing, due to the inheritance of DNA markers only an indication of the relationship can be provided. In the case of aunt/uncle testing, it relies upon the child’s parent and their aunt or uncle sharing sufficient DNA markers as siblings and those same matching markers being inherited by the child. In the Tribunal’s view, an inconclusive DNA result is not, on its own, probative evidence such to rule out the existence of such relationships. The Tribunal places little weight upon the inconclusive test results when considering the question of whether the visa applicants satisfy the criteria in reg 1.14(a)(iii).
[5] Understanding your DNA testing report // Cellmark
In this case, apart from the DNA test results there was other evidence presented to support the primary visa applicants’ claims that they are siblings and that they are the respective niece and nephew of the review applicant. That evidence includes:
a)The oral evidence provided at hearing. Each of the witnesses provided a creditable and consistent account of their familial relationship.
b)The review applicant’s birth certificate, which states that her parents were [Mr G] and [name].
c)A copy of [Mr D]’s birth certificate, which states that his father was [Mr G] and his mother was [name].
d)The birth certificates provided by the primary visa applicants, which confirm that their parents were [Mr D] and [Ms E].
e)An affidavit provided by [a named individual], who states that he was a neighbour and that [Mr A and Ms B] were the children of [Mr D] and [Ms E].
On balance, the Tribunal is satisfied that overall, the evidence supports the following findings of fact:
a)The review applicant is the half-sister of [Mr D].
b)[Mr A] and [Ms B] are the biological children of [Mr D] and [Ms E].
c)The review applicant is the paternal aunt of [Mr A] and [Ms B].
d)[Mr A] and [Ms B] are siblings.
The Tribunal is satisfied that [Mr A] and [Ms B] are each a relative of the review applicant, who is an Australian citizen[6]. The Tribunal is satisfied that in each case 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)
[6] Regulation 1.03.
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.
The primary visa applicants claim that their biological parents are both deceased. At hearing, consistent evidence was provided regarding those circumstances. As noted, the review applicant stated that her brother and his wife contracted Ebola and passed away soon after.
The primary visa applicant [Mr A] said that he was attending school in another location when he received information that his parents had died at home. He returned home to find his parents deceased. Due to the public health circumstances, his parents’ bodies were removed from the home. He does not know what happened to their remains. When he applied for a copy of his birth certificate, he also applied for copies of his parents’ death certificates.
The primary visa applicant [Ms B] also gave evidence that both her parents passed away. Her recollection of those events was not as clear. The Tribunal notes that at the time she would have been about [age] years of age.
The visa applicants provided two death certificates. The death certificates were issued by the Ministry of Health and Social Welfare and are signed by the Principal Registrar and contain a seal (Office of the principal registrar BVHSRL). The information in the documents is that [Ms E] and [Mr D] died on 16 August 2014 in [Nimba] County.
The Tribunal notes that a severe epidemic of Ebola virus in Liberia started in March 2014. An article about the outbreak[7] notes that the World Health Organisation called a public health emergency of international concern on 8 August 2014. The article details the significant public health challenges caused by the crisis. By the conclusion of the epidemic, Liberia had reported 4,808 deaths. Locations for outbreaks of Ebola included Nimba County, the county recorded on the death certificates provided to the Department.
[7] Ebola and Its Control in Liberia, 2014–2015 Emerging Infections Diseases 2016 Eb 22 (2) U169-177). >
In this matter, the Tribunal is satisfied that on balance the evidence supports the conclusion that the biological parents of the primary visa applicants [Mr A] and [Ms B] died in August 2014 during the Ebola epidemic that occurred in Liberia at that time.
The Tribunal is satisfied that in each case, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.
Best interests – reg 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.
The review applicant provided the following evidence:
a)Her niece and nephew have experienced significant trauma arising from the experience of their parents’ death from Ebola.
b)Subsequently they were living in very difficult circumstances. Her niece was sexually assaulted and gave birth to a child in 2015.
c)Upon being alerted to their circumstances she has provided for them financially and has returned to visit them.
d)She has concerns about their wellbeing. There are no other family members who can provided them with support.
e)It is in their best interests to join her husband and children in Australia where they can be part of the family.
The Tribunal accepts the review applicant’s evidence. 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 applicants [Mr A] and [Ms B].
The Tribunal is satisfied that in each case, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.
Given the findings above, cl 117.211 is met.
The Tribunal finds that the primary visa applicants [Mr A] and [Ms B] do not continue to satisfy the criterion in cl 117.211, but only because in each case the visa applicant has turned 18. It follows that cl 117.221 is met.
Are the secondary criteria met?
Clause 117.311 requires that at the time of application, the applicant is a member of the family unit of and made a combined application with a person who satisfies the primary criteria in subdivision 117.21.
In this case, there is a secondary visa applicant, [Ms C]. The delegate refused their application because they were not satisfied that the primary visa applicant [Ms B] had satisfied the primary criteria in subdivision 117.21.
As noted, the issues in contention in this matter were whether the primary visa applicants satisfied the requirements in cl 117.211 and cl 117.221. The Tribunal has limited it review to those disputed criteria and has not otherwise addressed the remaining criteria relevant to subdivision 117.21, which includes additional criteria set out in cl 117.212 (sponsorship criteria).
On this basis, the Tribunal concludes that the secondary visa applicant’s application is to be reconsidered, taking into consideration the Tribunal’s findings that the primary visa applicant [Ms B] satisfied cl 117.211 and cl 117.221.
Given the findings above, the appropriate course is to remit the applications for the primary visa applicants [Mr A] and [Ms B] to the Minister to consider the remaining criteria for a Subclass 117 visa, and to remit the application for the secondary visa applicant so that the secondary visa application can be reconsidered taking into account the Tribunal’s findings relevant to the primary visa application.
DECISION
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the directions that:
·The primary visa applicant [Mr A] meets the following criteria for a Subclass 117 (Orphan Relative) visa:
o cl 117.211 of Schedule 2 to the Regulations; and
o cl 117.221 of Schedule 2 to the Regulations.
The primary visa applicant [Ms B] meets the following criteria for a Subclass 117 (Orphan Relative) visa:·
o cl 117.211 of Schedule 2 to the Regulations; and
o 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.