Deng (Migration) - [2022] AATA 1655

Deng (Migration) [2022] AATA 1655 (4 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Ms Nyatot Pom Deng

VISA APPLICANTS:  Miss Nyalang Pom Deng
Miss Nyawal Pom Deng
CASE NUMBER:  2112851
HOME AFFAIRS REFERENCE(S):          2017022784
MEMBER:Christine Kannis
DATE:4 March 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 04 March 2022 at 6:36am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – there was no probative evidence of the claimed sibling relationship between the review applicant and the visa applicants – DNA testing results – Tribunal is not satisfied that each of the visa applicants is a relative of an Australian relative – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.211,117.221

CASES
EC v MIMIA [2004] FCA 978
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 September 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 26 June 2017. At that time, 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211 and cl 117.221.
The visas were refused because the delegate was not satisfied that the visa applicants were relatives of the review applicant and therefore, they did not meet cl 117.211.
The review applicant appeared before the Tribunal on 18 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants by telephone from Ethiopia. The Tribunal hearing was conducted with the assistance of an interpreter in the Nuer 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 decisions under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicants are orphan relatives of an Australian relative.
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.
In the present case, the review applicant, Ms Nyatot Pom Deng, is the relevant Australian relative.
‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. Regulation 1.14 says a visa applicant is an orphan relative if he or she:
- is a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
- has not turned 18;
- does not have a spouse or de facto partner;
- cannot be cared for by either parent[1] because each of them is either dead, permanently incapacitated or of unknown whereabouts; and
- there is no compelling reason to believe that the visa grant would not be in the applicant’s best interests.
The Tribunal notes that in meeting the criteria, all aspects of the definition must be considered and met. If the visa applicant does not meet one aspect of the definition in reg 1.14 then he or she cannot meet cl 117.211.
For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are not orphan relatives of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is not met, and does not continue to be met at the time of decision.
Age – reg 1.14(a)(i)
Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The passport of visa applicant Nyalang Pom Deng indicates her date of birth is 11 November 2001. The passport of visa applicant Nyawal Pom Deng passport indicates her date of birth is 25 January 2005. At hearing the review applicant and the visa applicants confirmed the visa applicants’ dates of birth are as shown in their passports.
The Tribunal has no evidence that the date of birth of each visa applicant is otherwise than as stated. Accordingly, reg 1.14(a)(i) was met at the time of application. At the time of decision, Nyalang Pom Deng is 20 and Nyawal Pom Deng is 17.
Spouse or de facto partner – reg 1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. At hearing the review applicant and the visa applicants confirmed that the visa applicants do not have a spouse or de facto partner and the Tribunal so finds. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.
Relative – reg 1.14(a)(iii)
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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.
The review applicant is an Australian citizen.
The Australian citizen, Australian permanent resident or eligible New Zealand citizen must be a ‘relative’ of the visa applicant.[2] Relative is defined in reg 1.03 to mean:
·a ‘close relative’ - which is defined by reg 1.03 to mean spouse or de facto partner, child,[3] parent, brother, sister, or a step-child, step-brother or step-sister; or
·a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
[2] Regulation 1.14(a)(iii).
[3] ‘Child’ is defined in s 5CA of the Act and reg 1.14A(2) of the Regulations.
Although the definition of relative includes a person’s partner, reg 1.14(a)(ii) precludes an applicant from being an orphan relative if the applicant has a partner.
In their Form 47CH Application for migration to Australia by a child, each of the visa applicants declared that their father, Pom Deng, and their mother, Nyariang Gach, are both deceased. The visa applicant Nyawal Pom Deng declared the visa applicant Nyalang Pom Deng as her sibling and the visa applicant Nyalang Pom Deng declared Nyawal Pom Deng as her sibling.
In a Form 40CH Sponsorship for a child to migrate to Australia, the review applicant claimed that Nyalang Pom Deng is her sister. She told the Tribunal that they share the same mother and the same father. She said her knowledge of their relationship was based on her being there when Nyalang Pom Deng was born.
In a Form 40CH Sponsorship for a child to migrate to Australia, the review applicant claimed that Nyawal Pom Deng is her sister. She told the Tribunal that they share the same mother and the same father. She said her knowledge of their relationship was based on her being there when Nyawal Pom Deng was born.
The Tribunal put to the review applicant that the delegate noted that in her Application to migrate to Australia she declared that her father Pom Deng and her mother Nyariang Gach both died in 1995. The delegate noted that the visa applicants were born in 2001 and 2005 and therefore their births post-dated the deaths of the parents the review applicant claims they share. In response, the review applicant told the Tribunal that when she came to Australia she came with her step-brother. She said he completed her application form and she had “no idea” about the information he provided. The Tribunal put to the review applicant that she would have been interviewed by the Department and requested to provide information relevant to her visa when applying for the visa. In response she said she sat outside and was not interviewed because she was a child. The Tribunal noted that Departmental records show she was interviewed on 28 September 2006 and that she provided information about her sibling relationships (full, half and step) and she did not refer to the visa applicants.
The Tribunal put to the review applicant that the delegate referred to DNA testing having been undertaken to establish the claimed relationships of the visa applicants and the review applicant. The results were as follows:
·    Nyatot Pom Deng, Nyalang Pom Deng and Nyawal Pom Deng are unlikely to share a full sibling relationship.
·    It was inconclusive as to whether Nyatot Pom Deng and Nyawal Pom Deng share a half sibling relationship.
·    Nyalang Pom Deng and Nyatot Pom Deng are unlikely to be half siblings.
In a statutory declaration dated 11 January 2022, the review applicant said that to the best of her knowledge she and the visa applicants share the same parents and the “DNA negative findings are completely incorrect”. At the hearing she told the Tribunal that she could not believe the DNA test results because her knowledge of her relationship with the visa applicants is based on her own experience.
The visa applicants told the Tribunal that they share the same mother and the same father with the review applicant. They said their father died in 2007 and their mother died on 31 December 2012. They said the review applicant provides them with financial assistance. The review applicant provided evidence of transferring funds to Rebecca Nyabura Bol. She told the Tribunal the recipient of the funds is her step-aunt and said she looks after the visa applicants.
The representative submitted that the visa applicants are experiencing significant hardship and said as young females they have no male to protect them. The representative requested that if the Tribunal was not satisfied the relationship between the review applicant and the visa applicants is that of siblings, it consider whether each of the visa applicants is a step-sibling of the review applicant. The Tribunal pointed out that the review applicant and the visa applicants were all very clear in their oral evidence that they share the same father and the same mother. Also, in her statutory declaration dated 11 January 2022, the review applicant said they share the same parents. Accordingly, there is no basis for the Tribunal to find that they are step-siblings. The Tribunal notes that in a pre-hearing written submission the representative also requested that in the alternative the Tribunal consider whether the relationship between the review applicant and each visa applicant is that of step-aunt and step-niece. Once again, the oral evidence provided by the review applicant and the visa applicants, as well as the documentary evidence, does not provide a basis for finding such a relationship.
In Tadese v MIBP [2021] FCA 514, the Court found that it was open to the Tribunal to place significant weight on the report of the DNA testing which, in this case it said, spoke for itself (at [25]). In this case the applicants had claimed that they were not siblings (in order that their marriage would not be deemed invalid). A DNA test found the statistical likelihood of the appellant and the visa applicant being half-siblings compared to unrelated individuals was 66 to 1, which was moderately strong evidence of them being half-siblings. Particularly in the absence of any further DNA testing contradicting that finding, the Tribunal was entitled to rely on those results and it was not necessary to go beyond them (at [23]). In the present case, the Tribunal places significant weight on the DNA test results.
The Tribunal decided that there was no probative evidence of the claimed sibling relationship between the review applicant and the visa applicants. In making this determination, the Tribunal takes into account and places significant weight on the DNA test results. The Tribunal also takes into account and places weight on the information provided by the review applicant in her Application to migrate to Australia, in which she declared her father Pom Deng and her mother Nyariang Gach, who it is claimed are also the visa applicants’ parents, both died in 1995, which pre-dates the dates of birth of both visa applicants.
For these reasons, the Tribunal is not satisfied that each of the visa applicants is a relative of an Australian relative. Accordingly, reg 1.14(a)(iii) was not met at the time of application.
As the Tribunal has found that the visa applicants do not meet reg 1.14(a)(iii), it is unnecessary for the Tribunal to consider whether they meet the other aspects of the definition of ‘orphan relative’.
Has the applicant been adopted by the Australian relative?
Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.
There is no evidence that the visa applicants have been adopted by the review applicant. Accordingly, cl 117.211(b) is not met by the visa applicants at the time of application or the time of decision.
Given the findings above, cl 117.211 is not met by the visa applicants.
For these reasons, the criteria for the grant of a Subclass 117 visa are not met by the visa applicants. There have been no claims advanced in respect of the other visa subclasses in Class AH by the visa applicants.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.
Christine Kannis
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.