2206821 (Migration) - [2023] AATA 1097

2206821 (Migration) [2023] AATA 1097 (28 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2206821

MEMBER:James Lambie
DATE OF ORAL DECISION:  28 March 2023
DATE OF WRITTEN STATEMENT:         29 March 2023
PLACE OF DECISION:  Brisbane
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(a) of Schedule 2 to the Regulations; and
·cl 117.221(a) of Schedule 2 to the Regulations.

Statement made on 29 March 2023 at 1:30pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – inconclusive DNA evidence – registration of births in Burundi – financial support by review applicant – common law presumption of death – best interests of the visa applicant – decision under review remitted
LEGISLATION
Family Law Act 1975, s 60
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14; Schedule 2, cls 117.111, 117.211, 117.221
CASES
Axon v Axon (1937) 59 CLR 395
Kim v MIAC [2007] FMCA 798
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 2 March 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 16 November 2015. 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 117.221(a).
The delegate refused to grant the visa because the applicant did not meet cl 117.221(a) of Schedule 2 to the Regulations because there was insufficient evidence that the visa applicant met the definition of Orphan Relative within the meaning of Reg. 1.14(a)(iii) and (b).
The review applicant appeared before the Tribunal on 28 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kirundi and English languages.
The review applicant was represented in relation to the review.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 28 March 2023.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is an orphan relative within the meaning of reg 1.14 of the Regulations.
Is the visa applicant an orphan relative 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. In the present case, the review applicant is the relevant Australian relative.
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)
Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicant submitted a Republic of Burundi birth certificate showing she was born on [date]. Accordingly reg 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)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The evidence of the review applicant is that the visa applicant does not have a spouse or de facto partner, and there is no evidence to the contrary. 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)
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.
The review applicant ([named]) claims to be the aunt of the visa applicant ([named]) by reason that [the review applicant] is the sister of [the visa applicant’s] father ([Mr A]). The delegate considered the evidence of this relationship to be deficient in two respects:
(a)[The visa applicant] did not submit an original birth certificate to attest to the identity of her biological parents, or her familial relationship with [the review applicant] and her attestation letter was not issued by an approved governing authority for birth registrations;
(b)The DNA evidence was inconclusive as to a familial connection between [the review applicant] and [the visa applicant] and, further, indicated that the relationship between [the visa applicant] and her claimed brother, [Mr B] (whom [the review applicant] also seeks to sponsor), was that of half siblings.
[The review applicant’s] evidence is that she was born in [Town 1], Burundi, on [date] to ethnically Hutu parents. She claims that [Mr A] was born in about [specified year]. She provided a history of her family as follows:
·Many of her family, including her father, were massacred in 1993. She escaped and sought asylum in [Country 1], moving among several refugee camps over the next 12 years.
·Having lived precariously in refugee camps, and surviving an abduction by rebels and an attack by government troops, she arrived in a refugee camp in [Country 2] in February 2005. She applied for an Australian humanitarian visa in October 2005 and was granted a Woman-at-Risk (subclass 204) visa in April 2007. She arrived in Australia with her children in July 2007 and was granted Australian citizenship in July 2012.
·She learned by about April 2013 that members of her extended family, including [Mr A] and his wife ([Ms A]) and children, had returned to the [Town 1] region. Another brother, [Mr C], contacted her to tell her that [Mr A] and [Ms A] had been murdered by bandits [in] April 2013 and that their [children], including [the visa applicant] and [Mr B], were with [the review applicant’s] mother. [The review applicant] made contact with the oldest of the siblings, [Mr D], and sought assistance to obtain orphan relative visas for them. An Australian migration agent assisted her to obtain identity documents.
·[The review applicant] lost contact with [Mr D] in about early 2015 but was contacted by a man by the name of [Mr E] in about April 2015 who said he had obtained her details from the children at the [named] refugee camp in [Country 3]. The children were then aged [age], [age] and [age] ([Mr B] had a twin brother, [Mr F]). She said she confirmed the children were her [brother’s children] and sent money to [Mr E] for their education and maintenance, amounting to some $10,000 since 2015.
·In about June 2018, [the review applicant] was told by [Mr E] that [Mr D] and [Mr F], had gone missing from the camp. She has heard nothing of them since and, presuming them to be dead, withdrew their visa applications in 2020.
·[The review applicant] remains in contact with [Mr E], although he is now in poor health and she fears for his ability to care for [Mr B] and [the visa applicant]. She is in intermittent contact with her mother, who is in very poor health and suffers from dementia. She lost contact with [Mr C] many years ago.
At the hearing, the Tribunal took [the review applicant] through her evidence. She told the Tribunal that, after her arrival in Australia, her mother had told her that [Mr A] was her half-brother, which was why she describes herself as the half-aunt of the visa applicants. She claimed that she had no inkling of this growing up and, until she was told by her mother, always considered [Mr A] her natural brother. This may be a factor in the inconclusive DNA results but the Tribunal does not consider it otherwise material to the application.
In response to the Tribunal’s questions, [the review applicant] gave evidence that the [Town 1] region is very undeveloped and remote and that record-keeping, as far as she is aware, is haphazard. She said that a birth certificate was never issued for her and that, in respect of the visa applicants’ documents, the local administration has its own rules. The Tribunal inquiries confirm that [Town 1] is a small province located on in the southeast of Burundi. The commune of [Commune 1] abuts the border with [Country 1]. Communications and transport links appear to be very limited.
The Tribunal has reservations about the veracity of [the visa applicant’s] birth certificate, attestation of identity and proof of residence which, in the original, lack the features one might expect of documents of this nature. They appear to have been produced as basic word-processor documents, lacking an official crest or watermark and are stamped by hand. Such documents are easily replicable. The Tribunal also notes that the birth certificates for [Mr B] and [the visa applicant] appear to be numbered consecutively (certificates [number] and [number], respectively, of volume [number]), although it is possible that this may reflect the order in which the extracts were produced. The Tribunal has no means at its disposal to verify the documents, other than to consider the available country information. The country information[1] is that:
Birth certificates and registrations of births are kept in Burundi, birth registration rates are between 60 and 70 per cent - a reporting rate that is high for sub-Saharan Africa. The severe and sustained civil conflicts which have consumed the country since independence in 1962 have hampered birth registration and record keeping. The loss of significant quantities of civic documentation and personnel has been a secondary effect of the conflict.
Information which discussed the relationship between the significant and prolonged periods of civil conflict in Burundi and accurate record keeping was also scarce. The murder of 150,000 Hutu in 1972 ; the massacre of “thousands of Hutus by Tutsis” in 1988 ; Burundi’s most recent 16 year civil conflict beginning in 1993, and the accompanying destruction of government buildings and records, indicate that available records would contain significant gaps.
In 2009, the Immigration and Refugee Board of Canada contacted Burundian officials (the Burundian embassy in Ottawa; and an official in the capital, Bujumbura) regarding the process for obtaining a birth certificate. The Embassy informed the Board that “individuals must apply to the community administrator of the commune where they were born.”[2] A telephone interview with Bujumbura’s city hall provided that “a birth certificate is issued upon presentation of an identity document, such as a national identity card… [In order to be issued a national identity card] those born after 1980 must present a birth certificate… those who were not born in or do not live in Bujumbura must go to [their natal] town hall or commune office to apply for a national identity card.”[3]The officer goes on to explain that new identity cards can be issued once the details have been verified in archives, however, the Board notes a study conducted by the Burundian Ministry of the Interior and Communal Development that reported, “the crisis that shook the country led to the destruction of numerous communal structures, work tools and civil status documents, as well as to the death or forced exile of competent personnel.”[4]
[1] Migration Review Tribunal, Country Advice, Burundi, BDI38002 – Hutu – 1993 conflict – birth certificates and registration (31 January 2011)
[2] Immigration and Refugee Board of Canada 2009, Burundi: Information on the procedure to follow and the documents required to obtain a birth certificate and a national identity card; whether a new national identity card can be obtained if a card is in poor condition; whether the birth certificate is stored by the regional passport office; the magnitude of fraud involving identity documents, particularly passports, visas, birth certificates and marriage certificates, 11 June, BDI103183.FE,
[3] Ibid
[4] Ibid
Accordingly, while there are features of the documents that raise concerns, the country information is broadly consistent with [the review applicant’s] evidence and the Tribunal makes allowances for the likelihood that record keeping is very basic in commune of [Commune 1].
The Tribunal has considered the DNA evidence. The only fact established by the DNA evidence is that [Mr B] and [the visa applicant] are half-sibling, s. This means that [Mr A] could be the biological father of either or neither of the visa applicants. In these circumstances, the lack of a conclusive genetic connection to [the review applicant] is not surprising. In view of [the review applicant’s] evidence of the prevalence of rape, and the possibilities of other uncertainties of parentage, the genetic linkage of the parties where it relies on the paternal line is not determinative as to whether the parties are relatives for the purposes of the Act.[5]
[5] See, e.g., the definitions of “relative” and “close relative”, reg. 1.03, Migration Regulations 1994 (Cth), and s. 60F, Family Law Act 1975 (Cth),
In coming to its conclusion, the Tribunal has given weight to the evidence provided by [the review applicant] of the continuity of the communications she has kept with [Mr B] and [the visa applicant], and with [Mr E] as their guardian. The Tribunal also gives weight to the financial support she has provided to them over a lengthy period which has been considerable having regard to her own meagre resources. Finally, the Tribunal was impressed with the apparent sincerity of [the review applicant’s] testimony and in satisfied that she and the visa applicants genuinely consider themselves to have a family relationship in the capacity [the review applicant] has claimed.
Accordingly, 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)
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 review applicant was unable to provide death certificates for [Mr A] and [Ms A]. However, she has resolutely maintained that they were killed [in] April 2013. There is no independent verification of this by way of news reports or a witness statement from [Mr C]. I do, however, give weight to the evidence that [Mr A] and [Ms A] are no longer alive.
The common law presumption of death is a rebuttable legal inference that in certain circumstances, after an absence of seven years, a person may be presumed dead: Axon v Axon (1937) 59 CLR 395. Where a claim has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include: whether other persons were likely to have received contact from the person presumed dead; what inquiries were made; the circumstances in which the person in question was last known to be alive; and any other relevant factors.
The evidence available to the Tribunal is that [Mr B] and [the visa applicant] are minors who have been resident in a [Country 3] refugee camp for some eight years, in circumstances where their existence has been dangerously precarious. I am satisfied that, had [Mr A] and [Ms A] been alive, they would have communicated with them in circumstances where their grandmother and uncle in Burundi, as well as their aunt in Australia, were aware of their situation. I am satisfied that [the review applicant] has made the appropriate inquiries given the exigencies of record-keeping and communications with the authorities of the commune of [Commune 1], and that the evidence as to when they were last seen alive has been generally consistent. I am therefore satisfied that [Mr A] and [Ms A] died in or about April 2013.
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)
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 evidence submitted to the Tribunal is that the visa applicant lives a precarious existence in a refugee camp in [Country 3], with limited education and a daily struggle for the necessities of life. Further, I am satisfied that her ad hoc guardian is in poor health and that the risk that she would come to harm in that environment is high. I am satisfied that the grant of the visa would be in her best interests. Accordingly, 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 visa applicant continues to satisfy the criterion in cl 117.211. It follows that cl 117.221 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
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(a) of Schedule 2 to the Regulations; and
·cl 117.221(b) of Schedule 2 to the Regulations.
James Lambie
Senior 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.