2206684 (Migration)

[2024] AATA 1219

2206684 (Migration) [2024] AATA 1219 (4 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nicholas Merlin

CASE NUMBER:  2206684

MEMBER:Glynis Bartley

DATE:4 April 2024

PLACE OF DECISION:  Sydney

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 4 April 2024 at 10:13am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – age at time of application – department’s decision made partly on applicant’s appearance – claim that birth certificate provided to agent, who did not provide it to department not accepted – certificate unable to be verified but has similar features to genuinely issued documents – passport also not provided to department – applicant now over 18 – DNA tests conclude highly likely sponsor and applicant are uncle and nephew – parents deceased – younger brother granted visa – combined hearing with application by sponsor’s half-sister/applicant’s aunt – best interests – applicant, aunt and cousin living precariously in third country – financial support by sponsor – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(a), Schedule 2, cls 117.111, 117.211, 117.221

CASE
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

ISSUE

1. The issue in this review is whether [the visa applicant] is the orphan relative of [the sponsor].

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The visa applicant applied for the visa on 23 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. 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 the visa applicant has not turned 18 at the time of application.

4. The delegate refused to grant the visa on 1 March 2022 on the basis that the visa applicant did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the visa applicant was under 18 years of age at the time of application. The delegate said the physical appearance of the visa applicant in the photographs provided to support the application appeared to indicate that the visa applicant is older than claimed. The delegate placed limited weight on documents submitted to support the application, including a polio vaccination certificate, [a Country] police clearance certificate and school records because they could not be verified. The delegate said there was insufficient documented evidence to support that the visa applicant was born on [Date] as claimed and was therefore under the age of 18 years when the application was lodged on 23 March 2017.

5. On 9 May 2022, the sponsor (the review applicant) applied to the Tribunal for review of the delegate’s decision.

6. The review applicant appeared before the Tribunal on 20 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence by video conference from the visa applicant and from [Ms A], who is the aunt of the visa applicant and the half-sister of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali language who attended by video conference.

7. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing by video conference.  

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

   BACKGROUND

9. The review applicant was born in Somalia and is a [Age]-year-old Australian citizen by grant. He migrated to Australia in 1996 after being granted a refugee visa. The review applicant is married and has [children]. He is employed as [an Occupation].

10. The visa applicant made the following claims in his application. The visa applicant was born in Somalia and currently lives in [City, Country] with his aunt, [Ms A], and [Ms A]’s [child]. He is the nephew of the review applicant and was born on [Date]. Consequently, he was [Age] years old at the time of application. The visa applicant’s parents were killed in a car accident in Somalia in [2015]. He has never been married or in a de facto relationship. The visa applicant is a student, does not work and is entirely reliant on financial support from the review applicant.

11. In addition to sponsoring the visa applicant’s Orphan Relative visa, the review applicant also sponsored his half-sister, [Ms A], her [child] and the visa applicant’s younger brother, [Mr B], on the basis that [Ms A] and [Mr B] are his orphan relatives. The Department refused [Ms A]’s visa on the same basis as the visa applicant’s and the review applicant sought further review of that decision with the Tribunal. The Department granted [Mr B]’s visa in February 2022, and he arrived in Australia in May 2022. The Tribunal held a combined hearing for both the visa applicant and [Ms A] because the applications involved common parties and issues.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing, the review applicant’s migration agent provided additional documents to the Tribunal including but not limited to the following: a copy of the visa applicant’s birth certificate, issued on 19 June 2016, a copy of the visa applicant’s passport, issued on 8 August 2019, statements by the visa and review applicants, submissions by the review applicant’s representative, and various articles and legal cases about determining the age of migrants and asylum seekers.

13. The visa applicant’s birth certificate had not been provided to the Department, despite it being issued nine months prior to the lodgement of the application. The Tribunal sent the birth certificate to the Department before the hearing to confirm whether it had been issued by the relevant authorities in Somalia. A Departmental officer advised the Tribunal registry that the birth certificate was unable to be verified due to changed administrative arrangements regarding documents issued in Somalia. However, the officer noted that the document has similar features to a genuinely issued document when compared to samples.

14. In making my decision, I have had regard to the documents in the Department and Tribunal files, as well as the oral evidence at the hearing. I received substantially more evidence than the delegate, including copies of identity documents. I also had the opportunity to question the review applicant and visa applicant at the hearing.

15. The oral evidence provided by the review applicant, the visa applicant and [Ms A] was generally consistent. When asked why the visa applicant’s birth certificate had not been provided to the Department despite requests by the relevant officer to his previous migration agent for copies of identity documents to support the application, the review applicant claimed that he had provided the birth certificate to the previous migration agent, and he could not explain why it had not been provided to the Department. I did not find the review applicant’s explanation to be plausible. The Department’s file contains lengthy communications between the review applicant’s previous migration agent and the Departmental officer with carriage of the matter, including in relation to identity documents.

16. In her submissions dated 6 December 2021, the review applicant’s previous migration agent said “…[i]t is submitted that the [visa] applicant does not have a birth certificate or other birth documents…” I was not persuaded that the review applicant’s previous migration agent had been provided with a copy of the visa applicant’s birth certificate as the review applicant claimed, although it was unclear why. Unfortunately, the Department was unable to verify the authenticity of the birth certificate provided to the Tribunal. Similarly, the delegate referred to the visa applicant’s passport photograph in the Record of Decision, but his passport was not included in the list of documents that the delegate received prior to making his decision. The review applicant’s previous migration agent submitted on 5 August 2019 that the visa applicant’s passport was expected to be issued in approximately two weeks and would be provided to the Department as soon as possible. It appears that the delegate was not given a copy of the visa applicant’s passport, because it was not referred to in the Record of Decision, despite the passport being issued more than two years before the application was refused. Again, I was unable to determine why that document was not submitted to support the application.

17. I agreed with the submissions made by the review applicant’s representative that determining the visa applicant’s age by his appearance alone was not a sound way to assess it. In the absence of any evidence to the contrary, I accepted that the visa applicant’s birth certificate and passport are genuine documents. Those documents are consistent with the other documentary and oral evidence before me. They confirm that the visa applicant was born on [Date] as he claimed. Other documents supporting the visa applicant’s claims regarding his age include immunisation and school records. The visa applicant’s oral history, and that provided by the review applicant and [Mr A] at the hearing, was consistent with the visa applicant’s claims regarding his family composition, death of various relatives, and his age. After taking into account all of the evidence before me, I was satisfied that the visa applicant was born on [Date].

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

18. 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 visa 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.

19. ‘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. It is claimed that the visa applicant is the nephew of the review applicant in that he is the son of the review applicant’s brother.

20. For the reasons set out below, I was satisfied that the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, I was satisfied that 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)

21. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. For the reasons set out above, I was satisfied that the visa applicant was born on [Date] as claimed. The visa applicant was therefore [Age] years of age when the application was lodged on 23 March 2017. Accordingly, reg 1.14(a)(i) was met at the time of application. This clause does not continue to be met at the time of decision, but only because the visa applicant has since turned 18.

    Spouse or de facto partner – reg 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. There was consistent and persuasive oral evidence at the hearing that the visa applicant has never been married or in a de facto relationship.

24. After having regard to all of the evidence before me, I was satisfied that the visa applicant does not have, and has never had, a spouse or de facto partner. Accordingly, 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)

25. 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.

26. The review applicant provided a copy of his Australian passport to the Department, and I was satisfied that he is an Australian citizen. The Department was unable to locate the documents that the review applicant submitted to support his visa application. Consequently, it is not clear if he declared his sibling relationship with the visa applicant’s father when he applied for his Australian visa.

27. Regardless, the review applicant and the visa applicant underwent DNA tests prior to the Department’s decision to confirm their family connection. The DNA tests, which were finalised on 23 October 2019, concluded that it is highly likely that the visa applicant is the nephew of the review applicant. I placed substantial weight on the results of the DNA tests and was satisfied that the visa applicant and review applicant are uncle and  nephew, as they claimed.

28. I was satisfied that the review applicant is an Australian citizen and is usually resident in Australia. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of this decision.

    No parental care – reg 1.14(b) met at the time of application and continues to be met at the time of decision.

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 provided death certificates for his parents,  which confirms that his parents [died] [in] 2015 in a car accident. They were aged [Ages] respectively. The Department was satisfied that the death certificates were genuinely issued documents, and I had no reason to doubt that finding.

31. I was satisfied on the basis of the evidence before me that the visa applicant cannot be cared for by either parent because they are deceased.

32. Accordingly, 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)

33. 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.

34. The visa applicant gave oral evidence at the hearing that he is studying in [City] and is financially supported by the review applicant. The review applicant sends US$400 per month to his nephew and sister by way of money transfer so they can pay their rent, tuition expenses and purchase essentials such as food and medication. Sometimes the review applicant sends more money if there is a specific need. 

35. In addition to [Ms A], the visa applicant has a [Age]-year-old aunt who lives in Somalia. She is a full-time student, and the visa applicant has limited contact with her. His only sibling, his younger brother, migrated to Australia two years ago and the visa applicant has no other close relatives living in either [Country] or Somalia.

36. The visa applicant lives in rental accommodation with his [Age]-year-old aunt and her [child]. The rent is US$150 per month. The visa applicant, his aunt and her [child] are living precariously in [Country] as Somali citizens. They hope to be reunited with the review applicant and come to Australia as soon as possible. The visa applicant said life is difficult for them in [Country] and neither he nor his aunt are working.

37. The visa applicant’s oral evidence at the hearing was supported by the review applicant and his aunt, [Ms A].

38. I accepted that the visa applicant faces difficulties as a young man living in a foreign county. He is dependent upon support from the review application to meet his basic needs. The review applicant is a blood relative and cares for the visa applicant by supporting him financially. He has sponsored the visa applicant to migrate to Australia following the death of his parents.

39. I was satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicant at the time of application and decision.

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

    Conclusions

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

42. The Tribunal finds that although the visa applicant does not continue to satisfy the criterion in cl.117.211, this is only because he has turned 18 since the application was lodged. It follows that cl.117.221 is met.

43. Consequently, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

44. The Tribunal remits the applications for Child (Migrant) (Class AH) visas 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.

    Glynis Bartley
    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.