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

1. 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.

2. 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).

3. 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.

4. In short, the review applicant claims that the two visa applicants are his orphaned nephews.

5. 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 applicants were the nephews of the review applicant.

6. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

7. 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

8. 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.

9. 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?

10. 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.

11. ‘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.

12. 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)

13. Regulation 1.14(a)(i) requires that a visa applicant has not turned 18.

14. The Tribunal notes that there were no contemporaneous records of birth provided. The Department of Foreign Affairs and Trade country information report on South Sudan, states that in South Sudan, legislation does not require registration of births, deaths and marriages and there are limited official procedures for issuance of documentation.[2] The review applicant confirmed that in South Sudan, ages are not recorded.

    [2] Department of Foreign Affairs and Trade, Country Information Report South Sudan,5 October 2016

15. The first-named visa applicant provided an Age Assessment Certificate from the Ministry of Health, South Sudan, stating that the date of birth was estimated as 3 March 1998. The second-named applicant provided an Age Assessment Certificate from the Ministry of Health, South Sudan, stating that the date of birth was estimated as 4 May 2000.

16. DFAT assesses the capacity of the government to issue reliable documentation as low.[3] However, the evidence about their ages was provided consistently in the 2010 application for a different visa, and this application. The dates are also included in their nationality certificates. Without any evidence to the contrary, and noting that the claims have been consistent and DNA testing referred to later in this decision found that the boys were siblings, the Tribunal is satisfied that the ages of the boys are as provided in the Age Assessment Certificates.

    [3] Department of Foreign Affairs and Trade, Country Information Report South Sudan,5 October 2016

17. The applications were made on 7 August 2015. At the time of application the first-named applicant was 17 and the second-named applicant 15 years old according to the Age Assessment Certificates. At the time of decision the first-named visa applicant is 20 years old and the second-named applicant is 18 years old. The Tribunal is satisfied on the basis of the evidence of the review applicant and the Age Assessment Certificates that the applicants were under 18 at the time of application.

18. Accordingly r.1.14(a)(i) was  met at the time of application. The applicants do not satisfy the requirement at the time of decision as they are over the age of 18.

    Spouse or de facto partner – r.1.14(a)(ii)

19. Regulation 1.14(a)(ii) requires that the visa applicants do not have a spouse or de facto partner.

20. The review applicant has confirmed to the Tribunal that the applicants do not have spouses or de facto partners.

21. As there is no evidence before the Tribunal which indicates that they are not single, the Tribunal is satisfied that the visa applicants did not have a spouse or de facto partner at the time of application and do not have a spouse or de facto partner at the time of decision. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

22. 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 r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

23. It is claimed that the review applicant is the brother of Adol Maluach Atuong Tok, the visa applicants’ mother, and that he is therefore the uncle of the visa applicants. At the Tribunal hearing, the review applicant said that he ‘knew that it was God’ who created them as brothers, and as his nephews.

24. The review applicant said that he grew up in Rumbek, South Sudan and had three brothers and two sisters. Adol was the eldest, and he was the ‘last born’. He said that in his country they do not record ages but he knows that he is now 50 years old. His family grew up in a house in the village living with both parents. They were farmers, and had goats and cattle. They did not go to school, ‘this was their way of life’. The children were taught how to farm and look after the house. When he was a young child, he looked after the goats and when he was older he looked after cattle and the estate. His sisters cooked for the family, and fetched water and firewood. He has memories of Adol fetching water and preparing food for the family.  He attended Adol’s wedding. It was not an official wedding as these did not take place in his village, but a traditional wedding with dancing. He left the village in his 20’s to be safe during the civil war, as there was fighting taking place in the village. His sister and brothers stayed behind, and after that he does not know what happened to Adol. He was told by family members who travelled to Uganda that Adol had three children after he left the village. He went to live in Uganda for ten years, and never returned.

25. The review applicant said that while he was living in Uganda, he kept in contact with his family through other villagers who came to Uganda. One of these villagers told him that Adol had three children. His parents passed away a long time ago. He never spoke to Adol after he left the village, but if someone came from the village he would ask for news about her and the rest of his family. Later he was informed that Adol and her husband had passed away because of the fighting, so he requested her children to be brought to him. In 2004/5 the boys were brought to the Sudan/Uganda border and in his ninth year in Uganda, in 2009, Adol’s three children were brought to him by his brother’s son. Between 2004/5 and 2009 he kept in touch with them through people walking between the refugee camp and the border. He rented a house and they stayed with him when they arrived in Uganda. Currently the boys are living with his wife in Uganda.

26. He was asked how he knew that these two boys were his sister’s sons. He said that when his sister passed away, his brother’s son told him that they were Adol’s children and that she had passed away, but they did not know how she had died. He was told that Adol and her husband had escaped from the village, and were presumed to be dead because they had disappeared during the war. They could have died because of fighting or by being killed by animals.

27. The children had DNA testing done, and one test was positive and the other was not. The other one ‘took the genes off the father’.  

28. His three brothers and one other sister are still living in South Sudan, but they all left his village because of fighting.  They scattered around, and now they cannot live in the village because of military presence.

29. He applied for a [visa] to come to Australia as his children were living in Australia. The visa applicants were included as migrating dependants in his application but were not approved to come to Australia as the relationship was not proven. A letter dated 15 August 2011 from the Australian High Commission Nairobi to the review applicant stated that the application was refused for six applicants including the two visa applicants.

30. Since he is in Australia he keeps in contact with the boys through his nephew and his wife.

31. In an affidavit of the second-named visa applicant dated 25 August 2017 sworn in Juba the second-named applicant stated that he and the other visa applicant were brothers, that their mother was Adol Maluach Atongtok, that they did not know the whereabouts of their mother, and that the review applicant was their guardian and maternal uncle.

32. A letter from the General Secretary of the Rumbek Community in Australia, dated 27 August 2018 stated that the review applicant was known to have left his nephews in South Sudan and that he has been their sole carer since their parents went missing.

33. A letter from a school in Mbarara dated 24 August 2018 to the review applicant requested school fees for one of the applicants. A receipt was provided for university fees paid by the review applicant in relation to the other applicant. Further details of payments made were provided in a schedule.

34. On 15 November 2016 DNA testing was offered by the Department to verify the claimed uncle-nephew relationship.

35. DNA Testing by Sonic Genetics and DNA Labs dated 5 April 2017 found that it was ‘practically proven’ that the visa applicants were full siblings.

    DNA testing first-named applicant

36. On 15 April 2017 the DNA results provided by Sonic Genetics stated that ‘statistically (the review applicant and the first-named visa applicant, Makuer,) are unlikely to share an uncle-nephew relationship’. The uncle nephew relationship index was noted to be 0.21.

37. The DNA Testing Report states that ‘a relationship index less than 1 argues against a relationship although known related people may have ratios less than 1’. Less than 1 is graded as ‘unlikely’, and 1 to 9 as ‘inconclusive’. The applicants were proven to be full sibilings.

38. In response, the review applicant submitted a statutory declaration. He declared that ‘My father was a Maluach, now deceased, and my mother is Yar. My sister is Adol Maluach Atuong Tok and we have the same parents. As far as I know we are full siblings, sharing the same biological parents. This would mean that I am the boy’s uncle”.

39. On the basis of the DNA evidence and the absence of other credible supporting evidence the delegate of the Department was not satisfied that the first-named visa applicant was a relative of the review applicant.

    DNA testing second-named applicant

40. On 5 April 2017 DNA results were received in relation to the second-named applicant. The uncle-nephew relationship index was calculated to be 2.50. The report stated ‘the profiles indicate an inconclusive uncle-nephew relationship’. The DNA Testing Report states that ‘a relationship index more than 1 argues in favour of a relationship and the larger the ration the higher the likelihood of a realtionship’. 1 to 9 is graded as ‘inconclusive’, and 9 to 19 as ‘likely’.

41. In response, the review applicant submitted a statutory declaration. He declared that ‘My father was a Maluach, now deceased, and my mother is Yar. My sister is Adol Maluach Atuong Tok and we have the same parents. As far as I know we are full siblings, sharing the same biological parents. This would mean that I am the boy’s uncle”.

42. On the basis of the DNA evidence and the absence of other credible supporting evidence the delegate of the Department was not satisfied that the second-named visa applicant was a relative of the review applicant.

43. The Tribunal is required to determine if the visa applicants are relatives of the review applicant. The DNA testing is inconclusive. Thus the Tribunal must make findings based on other evidence in addition to the DNA testing.

44. The Tribunal found the review applicant to be a genuine and credible witness. He had reasonable explanations about why the boys were not approved as dependants on his visa when he first came to Australia, stating that he is illiterate and found it difficult to provide dates and documents to prove the relationship.  His responses to questions about how he knew the boys were his sister’s children were straightforward – ‘these applicants were born by my sister with her husband’. He spoke with apparent sincerity about the need for him to take them to Australia when their parents were presumed to be dead. He was able to recall details of their childhood, and had memories of his sister working in the house, and collecting firewood, as well as the dancing at her wedding. He spoke persuasively of them growing up at the same house. Evidence has been provided that the boys are children of this sister, not only from the applicant, but from the visa applicants themselves. The Tribunal is persuaded by the fact that the review applicant did include the children in his own visa application and they were named at that time as his nephews. The Tribunal also acknowledges photographs of the family together, witness declarations and evidence of financial support of the visa applicants by the review applicant, although these documents do not in themselves evidence the prescribed relationship between the applicants. The letter from the school does suggest that the review applicant was paying school fees for the applicant recently, and a receipt from a university suggests he was paying university fees for the other applicant. There are also statements indicating that regular funds were being sent to the boys well before this application for visa was made, suggesting that the funds were not being sent only for the purposes of the visa application. There is nothing on the face of these documents to indicate that they are not genuine. The Tribunal was also persuaded by the fact that the review applicant calls them weekly to find out about their ‘well-being and education progress’. The review applicant’s wife is currently caring for them, indicating close familial connections. The Tribunal is also persuaded by the fact that the applicants freely undertook DNA testing indicating that they did believe that they were relatives. In regard to documents evidencing the relationship between the review applicant and his sister, the Tribunal accepts that many South Sudanese fled violence and in the applicant’s case he lived in a refugee camp such that it would have been difficult to locate documents which could evidence familial relationships. Another important factor in the Tribunal’s findings is that the Department has stated that claims made in relation to the visa applicants were consistent in the visa application in 2010 and in this application. Finally the DNA testing was conclusive that the boys were siblings, and in relation to one of them the finding was more than 1, which ‘argues in favour of’ the uncle/nephew relationship, even though it was at the low end of the spectrum for what was regarded as likely. Thus if this relationship was likely, then the other applicant would also be a nephew, as the sibling relationship was ‘practically proven’.

1. Considering all this evidence cumulatively, the Tribunal is satisfied therefore that the visa applicants are relatives of the review applicant. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

   No parental care – r.1.14(b)

2. 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.

3. It was claimed in the Departmental application that the whereabouts of the applicants’ mother, Adol Maluach Atuong Tok and of the the applicants’ father, Mayam Yai were unknown.

4. A letter from the Red Cross dated 3 January 2017 to the review applicant states that a tracing enquiry had been made and forwarded to Juba, in relation to missing family members Adol Maluach Atuong Tok, his sister, and Mayam Yar Lual (his brother-in-law) and Madietse Maluach Atuong. A further letter dated 1 March 2017 indicated that the Red Cross had been unsuccessful in locating the missing relatives. The Red Cross noted that they said they had been out of contact since 1997 and given there were two different areas for tracing, Malou, in Rumbek area and Bentiu, Unity State, it was difficult to locate information. In submissions from the representative to the Tribunal dated 5 September 2018, it was claimed that the applicants’ mother had died on 2 July 2007 and the father had died on 10 February 2006. Initially they believed that the parents were missing but later information revealed that they were deceased and death certificates were received in 2015. This was after the review applicant’s son, Makim Maker Maluach went to Rumbek in 2013 to enquire if police could search for them. The police came up with possible causes of death and asked the local hospital in Rumbek to register them as possibly deceased.

5. A copy of a death certificate for Adol Maluach Atuong Tok dated 2 July 2007 stated that she had died from malaria, and a death certificate for Mayam Yar Lual (the father) dated 10 February 2006 also stated malaria as the cause of death. The review applicant said that he was provided these death certificates by local health authorities in 2015 after the police searched for their whereabouts. He said that malaria was often stated by officials to be the cause of death because many people were dying from an epidemic of malaria during the war. The bodies of his sister and her husband were not located, so they presumed that they had died. He still contacted Red Cross in 2017 to confirm they were dead notwithstanding these death certificates, as their bodies had not been found.  It was not uncommon for people to be assumed to be deceased when they were not seen after an attack on a village. The war had dispersed people to many parts of the country.

6. 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)

7. 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.

8. 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:

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

   Conclusion on time of decision criterion:

10. 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.

    CONCLUSION

11. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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.

    Jane Marquard
    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.