Akek (Migration)

[2022] AATA 2726

Akek (Migration) [2022] AATA 2726 (30 May 2022)

WRITTEN STATEMENT OF DECISION AND REASONS

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:             Ms Apanda Derder Akek

VISA APPLICANT:               Miss Hellen Achicop Malual Enock

CATCHWORDS
MIGRATION– cancellation – Subclass AH (Orphan Relative) visa – Subclass 117– visa applicants were not orphan relatives of an Australian relative– DNA result – it is “unlikely” that the sponsor and Ms Encock are related as biological aunt and niece – decision under review affirmed

LEGISLATION
Migration Act 1958
Migration Regulations 1994, r 1.14, Schedule 2, cl 117.211

1.   Two applicants Hellen Achiop Malual Encock and Daisy Yier Mading Kuol applied for Child (Class AH) Orphan Relative (Subclass 117) visas on 23 December 2015.

2.   The applicants each are citizens of South Sudan, though they have resided for some time in Kenya. Their sponsor (the review applicant) is Australian citizen Apanda Derder Akek who resides in Australia. The sponsor claims to be the applicant’s aunt.

3.   The second named applicant’s decision and reasons has been made separately.

4.   Relevantly, Ms Encock claims her mother and father (Ameer Machar Ijong and Malual Inok) are both deceased.

5.   Clause 117.211 (a) requires (in part) that the applicant(s) are “an orphan relative of an Australian relative…” (‘underline’ added by Tribunal for emphasis).

6.   Orphan relative is defined under regulation 1.14. In part, it requires “the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknow whereabouts”.

7.   Relevantly, death certificates were provided for the applicant’s mother. However, at the time of the delegate’s decision, the delegate had not received a death certificate for the applicant’s father, or additional evidence outside their claim which satisfied the delegate their fathers were deceased. Accordingly, on 23 November 2017, the Minister’s delegate refused the visa on the basis the applicant could not substantiate the claimed death of her father and therefore did not satisfy regulation 1.14(b) or any of the alternatives under that regulation. It followed the applicant could not satisfy clause 117.211 in Schedule 2 of the Regulations.

8.   Ms Encock sent this Tribunal an email dated 4 June 2021 with a copy of a Death certificate for her father issued 25 July 2017 in respect to his death in a hospital in South Sudan on 23 March 2013.

9.   The Tribunal notes that even were the Tribunal to accept this Death certificate (issued two years after the applicant’s father’s death) at face value (which is does), in this applicant’s application, the Tribunal must also have regard to DNA evidence received in respect to the claimed relationship between the sponsor and Ms Encock.

1. Relevantly, Regulation 1.14(a)(iii) requires that the applicant is an orphan relative of another person who is an Australian citizen if the applicant “is a relative of that other person”.

2. DNA results dated 4 February 2022 and received 7 February 2022 assess that it is “unlikely” that the sponsor and Ms Encock are related as biological aunt and niece.

3. The Tribunal provided Ms Encock with a further opportunity to appear before it, including inviting her representative to formally respond to the DNA evidence she had provided. Ms Encock’s representative was also granted additional time to make submission on the applicant’s behalf, which was received 13 May 2022.

4. In summation, the representative’s submission requests: “The review applicant and the visa applicant requesting the Tribunal to remit the application to the Department of Home Affairs for further consideration, despite the DNA results because the review applicant continues to consider the applicants as her nieces.”

5. As the scientific evidence before this Tribunal is that the applicant Ms Encock and her sponsor are not related as claimed, the applicant cannot satisfy regulation 1.14(a)(iii), and therefore does not meet clause 117.211(a) at the time of application.

6. Given the above, this Tribunal has no alternative and must affirm the decision under review, with the above finding. The applicant can appeal the visa refusal to the Minister.
   
   Statement made 30 May 2022 in Melbourne, N. McGowan at 3:16pm