Adut (Migration)

[2018] AATA 4492

Adut (Migration) [2018] AATA 4492 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rebecca Akor Adut

VISA APPLICANTS:  Mr Malei Mading Chadar Majok
Mr Adut Mangar Chol Adut

CASE NUMBER:  1724736

DIBP REFERENCE(S):  OSF2016046562

MEMBER:Kira Raif

DATE:18 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 18 September 2018 at 12:03pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) – orphan relatives – DNA testing – sponsor’s relatives – parents presumed missing or dead – credibility issues – identity documents questioned – witness’s insufficient knowledge of family’s circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), rr 1.03, 1.14 Schedule 2 cls 117.111, 117.211, 117.221

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 Immigration on 13 September 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of South Sudan, born in 2003 and 2005 respectively. They applied for the visas on 5 January 2016. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Migration Regulations 1991 (the Regulations) because the delegate was not satisfied the visa applicants were orphan relatives of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 7 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from several of the witnesses nominated by the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. 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.

6. ‘Orphan relative’ is defined in r.1.14 of the Regulations. 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): r.1.03.

   Are the visa applicants orphan relatives of an Australian relative?

7. The visa applicants are nationals of South Sudan. They claim that their parents are deceased and that they had been cared for by other relatives.

8. The review applicant provided to the Tribunal copies of the primary decision records. These indicate that the first named visa applicant did not provide any documentary evidence relating to his parents’ deaths or any evidence to confirm his relationship with the sponsor. With respect to the second named visa applicant, the delegate notes that he presented a death certificate from a state hospital relating to the mother but the document was undated and the delegate was not satisfied of its probative value. There was no evidence of the father’s death.

9. The review applicant provided additional documentary evidence to the Tribunal. She submitted the children’s birth records, a copy of the provisional death certificate relating to the mother and a statement from the Ministry of Physical Infrastructure, Directorate of Land and Survey dated 14 May 2014 which refers to the death of the mother. The Tribunal considers this document problematic. It is unclear why the Directorate of Land and Survey of the Ministry of Physical Infrastructure would be responsible for issuing a death certificate. The review applicant explained to the Tribunal that the person who issued the document is a family friend from the local area who knows the family’s circumstances. The Tribunal is not satisfied that the death certificate constitutes probative evidence of death in circumstances where it was issued by a family friend in some formal capacity which is unrelated to the issuance of death records.

10. The Tribunal also notes that the provisional death certificate is undated and refers to the death in December 2006. There is no explanation as to how the information was obtained by the writer and whether any verification of that information was done before the statement was produced. The Tribunal does not consider the provisional death certificate to constitute probative evidence of death.

11. The review applicant told the Tribunal, with respect to the relationship with the visa applicants, that one is the child of her sister and one is the child of her half-brother. The review applicant confirmed her willingness to undertake the DNA test to confirm the relationship. The Tribunal arranged DNA testing to confirm the review applicant’s relationship with the visa applicants. On 19 June 2018 the Tribunal received advice from DNA Labs that the review applicant’s aunt – nephew relationship with Malei was ‘highly likely’ but the review applicant’s aunt – nephew relationship with Adut was ‘unlikely’. The Tribunal invited the review applicant’s comments on that information in accordance with s. 359A of the Act and the review applicant requested that another DNA test be conducted. On 12 September 2018 the Tribunal received advice from DNA Diagnostics Centre confirming that there is a 99.9% probability of relatedness between the sponsor and Adut. On the basis of this evidence, the Tribunal finds that both visa applicants are relatives of the sponsor.

12. With respect to Malei’s parents, the review applicant told the Tribunal that his parents had gone missing around 2003 or 2005. She said that local people tried to find the parents but could not and they did not approach any other organisation such as the Red Cross. When asked how the locals tried to find them, the review applicant said that they asked questions in the local area but did not find any information about them. The review applicant suggested that given the time that has passed, it is possible that they are dead. The Tribunal acknowledges that it may be possible but it is equally possible that continue to live in the same area or that they moved to another area and abandoned the child.

13. With respect to Adut’s parents, the review applicant told the Tribunal that his mother has passed away. The review applicant could not explain why the death certificate was a provisional one, stating it is the system in South Sudan and that it is difficult to obtain proper documents. The Tribunal does not accept that evidence. The review applicant’s explanation may be true if it was not possible to obtain death records but once such a death certificate is issued, it is unclear why the issuing authority would be unable to issue a full death certificate rather than an undated provisional one. With respect to Adut’s father, the review applicant claims that he was missing since an attack during the war around April 2004.

14. The review applicant repeatedly told the Tribunal that due to the poor situation in the country, it is not possible to obtain papers about the children’s parents. The Tribunal acknowledges that it may be difficult to do so, but the Tribunal does not consider the presented evidence to be probative. For the reasons stated above, the Tribunal does not consider the death record relating to Ms Atueny Deng Marial Luoc to be probative and there is no documentary evidence of death or relating to the whereabouts in relation to the other parents. Even if the parties were unable to obtain death records, there are other options available, such as searches through the Red Cross, and the Tribunal notes that this has not been done. The review applicant’s explanation is that the only enquiries were done locally through the community and not through any organisations that may normally conduct searches for missing persons.

15. The Tribunal took oral evidence from Mr Maker Cadar Dhok.  He stated that he lives in the same village and confirmed that the children are orphans. Mr Dhok said that in December 2006 Adut’s mother passed away but he did not know what she died of. Mr Dhok said Malei’s parents went to a different area but did not get there, so their whereabouts are unknown. They went missing in 2005. Mr Dhok said Adut’s father had gone missing in 2007 during an attack.

16. The Tribunal considers Mr Dhok’s evidence unhelpful. The Tribunal notes that the date of the father’s death differs from the oral evidence given by the review applicant and Mr Dhok appeared to be quite certain that the father went missing in 2007 rather than in 2004 as suggested by the review applicant. The fact that Mr Dhok was unaware of the circumstances of the mother’s death also suggests that he does not have sufficient knowledge of the family’s circumstances. This information was discussed with the review applicant pursuant to s.359AA of the Act. The Tribunal finds that at best, Mr Dhok does not have adequate information about the family for his evidence to be probative and, at worst, the discrepancies about the father indicate that he and the review applicant have been untruthful in their description of events.

17. There were two other witnesses nominated by the review applicant. The review applicant said their evidence would relate to the financial support she provides to the children. The Tribunal accepts that evidence and accepts that the children are financially reliant on the review applicant. As such, the Tribunal did not consider it necessary to speak to these witnesses.

18. The Tribunal has informed the review applicant in the course of the hearing that the evidence relating to the death, incapacity or whereabouts of the visa applicants’ parents was inadequate and insufficient to satisfy the Tribunal that the visa applicants were orphan relatives. The review applicant was given time to provide additional evidence. She provided to the Tribunal a statutory declaration on 13 September 2018 referring to her relationship with her biological sister and the fact that she has been unable to locate her sister.

19. The Tribunal does not consider the presented evidence sufficient to be satisfied that the visa applicants’ parents are dead, permanently incapacitated or of unknown whereabouts. For example, there are no contemporaneous and probative death records and no evidence of what attempts have been made, if any, to locate the visa applicants’ parents. There are no statements from organisations that may have assisted the review applicant in locating relatives – such as the Red Cross – indicating that attempts have been made to find the relatives. The death certificate relates to one of the parents and for the reasons above, the Tribunal considers that document to be deficient. There are a number of statements from individuals and organisations, but the Tribunal is not satisfied those who provided statements would necessarily be familiar with the family’s circumstances. The Tribunal acknowledges the review applicant’s evidence that documentary evidence is not readily available in South Sudan and the Tribunal accepts that this may be the case. However, the Tribunal must be positively satisfied that the visa applicants are orphan relatives and the Tribunal does not consider there is sufficient probative evidence to reach that satisfaction.

20. The review applicant also presented a number of statements in support of the application and indicating that she has been providing support to the children. The Tribunal accepts that evidence, but the review applicant’s willingness to provide support to the children and the review applicant’s involvement in community functions do not establish the visa applicants’ orphan relative status. Insofar as these statements evidence the parents’ death or unknown whereabouts, the Tribunal is of the view that such information would have been based on the review applicant’s own evidence and not through any independent or reliable verification of the circumstances.

21. On the limited evidence before it, the Tribunal is not satisfied that the visa applicants cannot be cared for by their parents because each of them is dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied the visa applicants are orphan relatives within the meaning of r.1.14. The Tribunal is not satisfied the visa applicants meet cl.117.211 and cl.117.221.

22. There is no suggestion that the visa applicants are children or adopted children of the review applicant. They do not meet the requirements for the grant of the Subclass 101 and Subclass 102 visas.

    Conclusion

23. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

24. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Kira Raif
    Senior Member