Atuong Tok (Migration) - [2018] AATA 5341

Atuong Tok (Migration) [2018] AATA 5341 (8 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Maker Maluach Atuong Tok
VISA APPLICANTS:  Mr Makuer Mayam Yai Lual
Mr Jiir Mayam Yai Lual
CASE NUMBER:  1720242
DIBP REFERENCE(S):  2015075435 OSF2015/075435
MEMBER:Jane Marquard
DATE:8 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the applicants meet 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 08 November 2018 at 2:57pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – relationship to review applicant as nephews – DNA tests inconclusive – consistent and credible witness – Red Cross tracing service unable to locate parents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 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

The visa applicants are young men from South Sudan. They are currently living in a refugee camp in Uganda. The review applicant is a permanent resident of Australia, originally from South Sudan. He arrived in Australia [in] 2014.
The visa applicants applied for Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act) on 7 August 2015. At that time, Class AH contained three subclasses. In this case, claims have been made in respect of the Subclass 117 visa, Orphan Relative. The visa is intended to reflect ‘immigration principles relating to the reunion of relatives in recognition of kinship ties and the bonds of mutual dependency and support within families’.[1]
[1] PAM3 Sch2Visa 117 – Orphan Relative [1] and PAM 3 Sch2Visa837 – Orphan Relative at [1] (compilation 13/222015).
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117. 211 which requires that the applicant is an orphan relative of the Australian relative of the applicant or is not an orphan relative only because the applicant has been adopted by this Australian relative.
In short, the review applicant claims that the two visa applicants are his orphaned nephews.
A delegate of the Department of Home Affairs (the Department) refused to grant the visas on 22 June 2017. The delegate refused to grant the visas because the delegate was not satisfied that the visa applicants met cl.117.211 of Schedule 2 to the Regulations, because of inconclusive DNA testing to verify that the visa…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Atuong Tok (Migration) [2018] AATA 5341
Case: [2018] AATA 5341
Decision Date: 8 November 2018

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), brought before the Administrative Appeals Tribunal by a review applicant on behalf of two visa applicants. The core dispute revolved around whether the visa applicants qualified as orphan relatives of an Australian relative, specifically the review applicant, who claimed to be their uncle. The visa applicants, citizens of South Sudan, were residing in a refugee camp in Uganda, and their parents were stated to have died in 2006 and 2007.

The Tribunal was required to determine whether the visa applicants met the criteria for an orphan relative visa under clause 117.211 and clause 117.221 of the Migration Regulations 1994. Specifically, the Tribunal needed to ascertain if the visa applicants were indeed orphan relatives of an Australian relative at the time of application and at the time of decision, considering the definition of an "orphan relative" which includes being under 18, not having a spouse or de facto partner, being a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and being unable to be cared for by either parent due to death, permanent incapacity, or unknown whereabouts. The Tribunal also had to consider whether there was any compelling reason to believe that granting the visa would not be in the best interests of the visa applicants.

The Tribunal reasoned that while DNA tests were inconclusive, the review applicant had provided consistent and credible testimony. The Tribunal placed little weight on the provided death certificates due to the high prevalence of fraudulent documentation in South Sudan. However, it was persuaded that the visa applicants could not be cared for by their parents due to their parents' death or unknown whereabouts, supported by consistent information provided over time, the inclusion of the applicants in an earlier visa application based on their parents being missing, supporting affidavits, and the inability of the Red Cross tracing service to locate the parents. The Tribunal applied the common law presumption of death, noting that the parents had been missing for over seven years, and found that this presumption, along with the inquiries made, satisfied the criterion that the parents were of unknown whereabouts or dead. The Tribunal also found no compelling reason to believe that granting the visa would not be in the best interests of the applicants.

Consequently, the Tribunal found that the visa applicants met the criteria under clause 117.211 and clause 117.221, with the latter being met because the visa applicants had turned 18, meaning they no longer satisfied clause 117.211 only because they had passed that age. The Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration by the Minister, with the direction that the applicants met the specified criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The review applicant appeared before the Tribunal on 18 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages, and a registered migration agent represented the review applicant. As the interpreter needed to leave early for a prior commitment before the end of the hearing, the representative agreed that the review applicant would consider written questions from the Tribunal and inform the Tribunal if they wished to hold a second hearing. On 28 September 2018 the Tribunal wrote to the applicant requesting further information in relation to a number of topics, and also inviting the applicant to inform it if the applicant wished to hold a further hearing. On 11 October 2018 the applicant’s representative provided a written response and did not request a further hearing. CONSIDERATION OF CLAIMS AND EVIDENCE In coming to a decision in this case, the Tribunal has taken into account evidence from the Form47CH and other information before the Department and Tribunal. This evidence is summarised in the following paragraphs. The key issue in the present case is whether the visa applicants are nephews of the review applicant. Are the visa applicants 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 r.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): r.1.03. In the present case, Maker Maluach Atuong Tok, is the relevant Australian relative, as he claims to be the uncle of the visa applicants. The Form 47CH indicates that orphan relative visas were sought for the applicants, who are citizens of South Sudan, currently residing in Kariyanangdongo Refugee Camp, Uganda. The applicants’ sponsor is named as Maker Maluach Atuong Tok, a permanent resident of Australia, of South Sudanese descent. It is stated in the application that the applicants’ parents died in 2006 and 2007, and that the applicants fled to Uganda from South Sudan 2004/2005 and remained in the review applicant’s care until his [visa] to Australia was finalised. The review applicant included the visa applicants in his [application], but due to discrepancies in dates from the flight from Sudan, they were refused. The children then went into the care of a person called Magane Medietsi Maluach. Age – r.1.14(a)(i)

Decision

Reasons for decision

The Department of Foreign Affairs and Trade Report on South Sudan suggests that there is a high prevalence of fraudulent and fraudulently obtained documentation in South Sudan. The report states that death certificates can be high risk and are extremely unreliable.[4] Given this information, the Tribunal places little weight on the fact that the certificates state that the review applicant’s sister and her husband died from malaria. The Tribunal is persuaded that the visa applicants cannot be cared for by either parent because each of them is either dead or of unknown whereabouts for the following reasons. Firstly, there has been consistent information given by the applicants since the review applicant first applied for his [visa] to come to Australia. Secondly, the visa applicants were included in the earlier application on the basis that their parents were missing. Thirdly, there are supporting affidavits. Fourthly, there is evidence that tracing was requested but the Red Cross could not locate the parents of the visa applicants. Fifthly, many people did go missing during these years.[5] Finally, the review applicant has been a consistent and credible witness. 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. As in this case, 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. In this case, the Tribunal is satisfied that the common law presumption of death applies given the length of time, and the inquiries made.[4] Department of Foreign Affairs and Trade, Country Information Report South Sudan,5 October 2016[5] International Committee of the Red Cross, South Sudan, >Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.Best interests – r.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. There is no compelling reason before this Tribunal which would lead it to believe that the visa would not be in the best interests of the visa applicant. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.Conclusion on time of application criterion:Given the findings above, cl.117.211 is met. Conclusion on time of decision criterion: The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, but only because the visa applicant has turned 18. It follows that cl.117.221 is met. CONCLUSIONGiven these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.DECISIONThe Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the applicants meet 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.Jane MarquardMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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