AWAN (Migration)

[2018] AATA 48

AWAN (Migration) [2018] AATA 48 (3 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms MARTHA ANYIER AGUET AWAN

VISA APPLICANT:  Mr MALOU AGUET AWAN

CASE NUMBER:  1603710

DIBP REFERENCE(S):  OSF2012/050756

MEMBER:Kira Raif

DATE:3 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 03 January 2018 at 4:05pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Requirement to be orphan relative of an Australian relative – Delegate not satisfied of applicant’s identity – Witness credibility - Conflicting evidence as to age of applicant – Conflicting evidence submitted by sponsor

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.211, 117.221, Schedule 4, PIC 4020(2A)

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 10 February 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of South Sudan and claims to be born in December 1995. He applied for the visa on 22 August 2012 and was sponsored in that application by his sister. The delegate refused to grant the visa because the applicant did not meet cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was an orphan relative of an Australian relative. The delegate was also not satisfied of the visa applicant’s identity and found that he did not meet Public Interest Criterion (PIC) 4020(2A). The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 3 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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, 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.

   Is the visa applicant an orphan relative of an Australian relative?

7. The review applicant provided to the Tribunal a copy of the primary decision record, which contains the following information.

8. The visa applicant claims to be a half-brother of the sponsor, sharing the same mother but different fathers. The sponsor stated in the sponsorship form that she had never personally met the visa applicant because she was separated from her mother at a young age. She stated that in July 2009 an aunt contacted her and told her that the visa applicant (and his sister) were living without supervision and later arrangements were made for the visa applicant to live with other relatives.

9. The visa applicant claimed to be 17 years old at the time the application was made. He stated that his mother (who is also the sponsor’s mother) Nyalieny Mathok was killed during an attack by Janjaweed in December 2006 and the visa applicant’s father Gol Morabol was killed in Torit in 1996.

10. As evidence of his age, the visa applicant provided an identity card issued by the Chairman of the Local Council of Kawempe in Uganda and a copy of his SPLM Membership card issued on 8 February 2012 which gives his date of birth as 29 January 1995. The primary decision notes that DIBP officers visited the visa applicant’s home in February 2013 and the applicant produced a different SPLM membership card with his date of birth as 29 December 1995. The officers noted that the applicant presented with confidence of someone who was older than his claimed age. The visa applicant was interviewed in July 2013 and was questioned about his schooling history. Based on information, and the timeline of his previous schooling in Sudan, the interviewer concluded that the visa applicant was older than 18 at the time of the application. The visa applicant claimed he made regular trips between South Sudan and Uganda but has not provided any form of travel document to verify his age. (The review applicant refers to a misunderstanding and claims that the visa applicant had never travelled and does not have a passport.)

11. When asked to comment on adverse information, the visa applicant stated that there was a misunderstanding and poor interpretation. The applicant suggested that his age was misinterpreted because of his height and this must be what happened with the old SPLM card. The Tribunal considers that explanation utterly implausible. The Tribunal does not consider that any formal document would be based on one’s age being guessed and merely on the basis of one’s height. In the Tribunal’s view, the fact that the two SPLM cards offered different dates of births for the visa applicant indicates that such cards are unreliable with respect to determining the visa applicant’s age. The applicant stated that he knew his age because his aunt told him but that, in the Tribunal’s view, is also an unreliable indicator of age. The visa applicant stated that he went to school in Sudan up to primary 7 and to Form 1 in Uganda when he arrived in 2009. He started school in Sudan in 2002 when he turned 7.

12. The review applicant told the Tribunal that the first SPLM card was incorrect because the officer simply estimated his date of birth but the Tribunal does not consider that the officer would write the correct date and year but incorrect month of birth when ‘estimating’ the visa applicant’s date of birth. The review applicant said her brother did know his date of birth, because of her aunt, but if that is the case, there is no reason why he should have given an incorrect date of birth to the person completing the paperwork or why he would not correct the information, once the ‘incorrect’ card had been issued, if he knew that information to be incorrect.

13. The review applicant confirmed there were no contemporaneous records of the visa applicant’s date of birth and no birth certificate or other official records, including passport. That would suggest that all documents referring to the visa applicant’s age, including educational records, membership cards and cards from the local council, are based on the self-reported age and the Tribunal does not consider that to be probative. The review applicant told the Tribunal that they knew his date or birth because her aunt remembered his date or birth. The review applicant said her aunt lived in the same household at the time he was born and another relative died in the same year, so she recalled the dates. The Tribunal considers it implausible that the person would recall the precise year, month and the date or birth of another person born over 17 years earlier in the culture where dates are clearly unimportant and where no contemporaneous record is made at the time of the event. Even if the aunt recalled the year of death of another relative, which was the year the visa applicant was born, that may explain her recollection of his year of birth but not her recollection of the precise date of birth for the visa applicant. The Tribunal does not consider it plausible that the aunt would recall the precise date of birth of the applicant without any aid or record, so many years after his birth.

14. The review applicant’s evidence to the Tribunal is that there are no birth records, as the visa applicant was born at home in a remote area. As noted above, there are no contemporaneous records of birth. That is, the only record of the visa applicant’s date of birth is the visa applicant’s and the review applicant’s own beliefs, based on the statement from the aunt. The Tribunal does not consider the aunt’s evidence to be persuasive or probative. The Local Council records are clearly unreliable because the two cards to which the primary decision refers, show different dates of births and various other documents are based on self-reporting and not any independent verification of the visa applicant’s date of birth. The review applicant’s evidence to the Tribunal is that there is no other documentary evidence of the visa applicant’s date of birth.

15. On the presented evidence, the Tribunal is not satisfied the visa applicant was born when he claims to have been born. The Tribunal is not satisfied that his date of birth is December 1995 and the Tribunal is not satisfied the visa applicant was under the age of 18 at the time the application was made. The Tribunal is not satisfied the visa applicant meets r. 1.14(a)(i).

16. With respect to the visa applicant’s relationship with the sponsor, the primary decision record indicates that the visa applicant claims his father was killed in 1996 and his mother was killed in 2006. The sponsor migrated to Australia on a Partner visa in June 2008 and did not declare the visa applicant as her half sibling. The sponsor also stated in her application that her mother was a widow living in Sudan, which appears to contradict the visa applicant’s evidence that his mother died in 1996. The primary decision record indicates that the sponsor was interviewed in December 2007 and during the interview she stated that her father died in 1976 and her mother was ‘inherited’ by her uncle Jacob Macuec who died in 1998, which also appears to contradict the visa applicant’s evidence that his mother gave birth to him in 1995 and that his father was Gol Marabol.

17. The review applicant told the Tribunal that her father Jacob Macuec passed away in 1993 but they received the final news in 1998. Her mother remarried in 1994 and Gol Marabol was the father of her brother. The applicant said her mother passed away in 2006 and she found out about it in 2007. The review applicant then said that she learned about the death of her mother in 2008 and not in 2007 and she did not know this information at the time she made her own visa application. In her statement to the delegate, to which the primary decision record refers, the review applicant stated that when she sponsored the visa applicant, she learned most of the information from her aunt. She learned that the visa applicant was born to her mother and Gol Marabol who died in 1996. Gol Marabol was listed as her mother’s second husband when he was in fact her third. The sponsor claims that her aunt is a reliable source of information because she was with her mother throughout that time.

18. The Tribunal considers these explanations problematic because the information produced by the visa applicant in the present application appears to contradict the information provided by the review applicant in her own visa application. While it may be possible that the sponsor was unaware of the existence of the visa applicant, and of her mother’s death, until after she made the application (and there is no evidence she had subsequently informed the Department about the changes in her circumstances), this does not explain the inconsistent information about the mother’s marriages. The primary decision record indicates that the sponsor stated in her own application that when the mother’s first husband died in 1976, she married his brother Jacob and that Jacob died in 1998. However, she now submits that in 1995 her mother gave birth to the visa applicant from a different relationship. While the Tribunal cannot conclude that the review applicant and the visa applicant have been deliberately untruthful about these matters, these discrepancies and the inconsistencies between the information submitted in the present application and the review applicant’s own visa application raise concerns about the probative value of the evidence provided.

19. The review applicant explains that there is no documentary evidence to support any of these claims but her aunt is a reliable witness. Given the discrepancies in evidence in the visa applicant’s application and the sponsor’s application made in 1997, the Tribunal does not consider oral evidence of the parties to be reliable or probative. The Tribunal is mindful that despite the claimed reliability of the aunt’s testimony, the review applicant argues that the information she provided in her own visa application was incorrect. As such, the Tribunal does not consider that the statements from the visa applicant and the review applicant and the aunt are probative or sufficient to satisfy the Tribunal of the claimed relationships and parentage. In the absence of any probative documentary evidence concerning the visa applicant’s and the review applicant’s relationship and family composition, the Tribunal is not prepared to accept their assertions on the matter.

20. The Tribunal acknowledges that DNA testing is available and may prove the half sibling relationship between the visa applicant and the sponsor. However, it will not establish who the visa applicant’s parents are, particularly as they only claim to share one parent. That information is central to determining whether the visa applicant is an orphan relative.

21. The review applicant and the visa applicant claim their parents have died. The review applicant told the Tribunal that there is no record of her mother’s death or of his father’s death because they were killed during the war. There are no death certificates or burial records or records of religious funeral ceremonies and no other evidence of deaths. The visa applicant presented with his application a number of statements from third parties attesting to the deaths. The Tribunal has little opportunity to test that evidence and does not consider witness statements on their own to be reliable or adequate evidence. The Tribunal would have preferred contemporaneous evidence from independent sources.

22. Thus, even if the Tribunal accepts that the applicant and the sponsor are half-siblings, the Tribunal is not satisfied on the evidence before it that both of the visa applicant’s parents are dead. Essentially, the Tribunal does not consider the presented evidence to be sufficient to establish the visa applicant’s parents have died. There is no evidence, and the parties do not claim, that they are permanently incapacitated or that their whereabouts are unknown. Ultimately, the Tribunal is not satisfied that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied he meets r. 1.14(b).

23. The Tribunal is not satisfied on the evidence before it that the visa applicant is an orphan relative of the review applicant within the meaning of r. 1.14. He does not meet cl. 117.211 and cl. 117.221. In light of this finding, it is not necessary to consider whether the visa applicant meets Public Interest Criterion 4020.

24. There is no evidence that the visa applicant is a child of the sponsor or an adopted child. The Tribunal is not satisfied the visa applicant meets the key criteria for the grant of the Subclass 101 and Subclass 102 visa.

    Conclusion

25. 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

26. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Kira Raif
    Senior Member