Duot (Migration)

[2019] AATA 2548

Duot (Migration) [2019] AATA 2548 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Duot Malou Duot

VISA APPLICANTS:  Mr Chol Malou Duot
Ms Athieei Malou Duot
Mr Majur Malou Duot
Ms Adhieu Malou Duot
Ms Alek Matiop Deng
Mr Atem Nyang Ayii Nyang
Mr Matiop Ayual Bior Bior
Mr Chol Malou Duot Lei
Mr Chol Yak Atem Duot

CASE NUMBER:  1701291

DIBP REFERENCE(S):  OSF2015/075234

MEMBER:Kira Raif

DATE:11 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 11 June 2019 at 7:58am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – no evidence of the deaths of visa applicants’ parents –not satisfied that parents were deceased – applicant failed to identify his siblings – incorrect answers in the application forms – credibility concerns – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211, 117.221, PIC 4020

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 19 January 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of South Sudan. They applied for the visas on 30 June 2015. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the visa applicants were orphan relatives of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from several witnesses nominated by the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. The review applicant was represented in relation to the review by his registered migration agent. 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Regulations.

5. 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. 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.

   Are the visa applicants orphan relatives of an Australian relative?

7. The review applicant provided to the Tribunal copies of the decision records in relation to each of the visa applicants which contain the following information.

   Athieei Malou Duot

8. This visa applicant claims to be a sister of the sponsor. She claims to be born in April 2002 and the delegate accepted that date of birth and that the visa applicant was under the age of 18 when the application was made.

9. The delegate notes that the sponsor had previously made the application for the permanent visa and in that application he listed two siblings, Thon Akoi and Atem Thon, and stated that both were deceased. The visa applicant was not declared as a sibling of the sponsor in the sponsor’s own visa application. The sponsor also stated that his father Malou Duot Akoi and mother Alek Akech Ayii were deceased.

10. The delegate wrote to the visa applicant seeking her comments on the above information. In response, the sponsor provided a declaration stating that he declared his parents as being deceased but he was not aware of his siblings’ whereabouts. In a further declaration, the sponsor explained that there were mistakes in the visa applicants’ dates of birth because he was uncertain about their dates of birth. The sponsor stated that some of the names were left out unintentionally from his own application as he did not pay attention to every detail.

11. In oral evidence to the Tribunal, the review applicant said that when he made his own application, he was added to his cousin’s application and he did not know the whereabouts of his siblings. The Tribunal is mindful that the application forms do not normally ask for information about siblings whose whereabouts are known, so that the review applicant was required to disclose all siblings, whether or not he was aware of their whereabouts. The review applicant also said that he was ‘misinterpreted’ when the application was completed.

12. The Tribunal considers it problematic if the review applicant failed to identify his siblings in his own visa application, even if he was not aware of their whereabouts. In the Tribunal’s view, that indicates that he provided incorrect answers in the application forms.

13. The delegate also referred to another application made in 2013 in which the sponsor had sponsored his siblings for resettlement in Australia. In that application the visa applicant was not declared as the sponsor’s sister. The review applicant admits in oral evidence to the Tribunal that he did not mention this sister in the 2013 sponsorship. He initially told the Tribunal that he ‘forgot’. The Tribunal does not accept that the review applicant would have forgotten the existence of his sister. The review applicant could not explain why this sibling was not mentioned in that application but said that somebody else helped with the paperwork and he only completed his part of the application. Again, the failure to refer to this visa applicant appears to constitute an incorrect answer on the form.

14. The delegate was not satisfied that the visa applicant was the sister, and a relative, of the sponsor. Further, the delegate was not satisfied that the visa applicant could not be cared for by either parent because each of them was dead. The delegate was not satisfied the visa applicant was the orphan relative of the sponsor.

15. The review applicant told the Tribunal that this visa applicant is his full sister and they share the same parents. The review applicant said that their parents have passed away. When asked about the circumstances of their deaths, the review applicant said they were attacked and killed in 2005. His parents were buried in their local area and there are no documents to confirm their deaths. The review applicant said that they did not die at hospital, so there are no records of their deaths. The review applicant noted that he provided consistent information about his parents’ deaths in his own applications. One of the witnesses confirmed in oral evidence that the review applicant’s parents have died.

16. The Tribunal considers that evidence inadequate. The Tribunal acknowledges that death records may not be available in the circumstances of a violent conflict but the Tribunal is not prepared to accept the evidence of the review applicant – and others – about the deaths of the parents without any supporting evidence.

17. The Tribunal places weight on the fact that there were many inconsistencies in the information supplied in the present application and previous applications, as set out in the primary decision record. The review applicant admits that he did not declare his siblings in his previous visa application and he also concedes that inconsistent dates of birth have been provided in relation to the siblings, even though he now claims in his evidence to the Tribunal that he is certain about his siblings’ dates of birth. Given these inconsistences and discrepancies, the Tribunal has formed the view that neither the review applicant nor the visa applicants are credible witnesses and for that reason, the Tribunal is not prepared to accept their claims about the parents’ deaths without supporting evidence. The review applicant informed the Tribunal that such evidence was not available.

18. On the limited evidence before it, the Tribunal is not satisfied the visa applicant’s parents have passed away. The Tribunal is not satisfied the visa applicant cannot be cared for by her parents because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied the visa applicant meets r.1.14(b) and that she is an orphan relative of the sponsor. Given this finding the Tribunal has not requested the parties to undertake DNA testing to confirm their relationship. The visa applicant does not meet cl.117.211 and cl.117.221.

    Majur Malou Duot

19. This visa applicant claims to be born in December 2003 and to be a brother of the sponsor. The visa applicant stated that his father Malou Duot Lei and his mother Alex Ayii Nyang were deceased.

20. The delegate notes that the sponsor made his own visa application (as a dependent applicant) in 2008. In that application, the sponsor declared two siblings and stated that both were deceased. The visa applicant was not declared as a sibling in that application. Further, in 2013 the sponsor sponsored the visa applicant and other family members for Australian visas. In that application the sponsor declared the visa applicant as a brother and stated that he was born in January 1999.

21. The delegate wrote to the visa applicant inviting his comments on adverse information concerning his date of birth and his relationship with the sponsor and the application of PIC 4020. In response, the sponsor conceded that the visa applicant was not mentioned in his own visa application as he was a dependent applicant at the time and was ‘not so independent or keen to checked [sic] every data entry in his application’. The sponsor also explained that he did not mention his siblings at the interview because he did not know their whereabouts.

22. The visa applicant included with his application evidence of his age, including an Age Assessment Certificate. The review applicant subsequently provided to the Tribunal a copy of the visa applicant’s ID Card. The delegate found that the visa applicant had given false information in support of his application, being information about his date of birth as being 12 December 2003, and also evidence about his relationship with the sponsor. The delegate found that the visa applicant did not meet PIC 4020(1). The delegate was not satisfied that any compelling or compassionate circumstances existed for the purpose of the waiver.

23. In oral evidence, the review applicant confirmed that this brother was born in 2003 and that the information in the previous application of his date of birth being 1999 was ‘a guess’. The review applicant said that he knew when this brother was born because this brother was younger than him. Given the different indication of dates of birth in the previous application and the present application, the Tribunal does not consider the visa applicant’s or the review applicant’s assertion to be probative or reliable.

24. The review applicant said that his brother has the Age Assessment Certificate, passport and ID Card with that date of birth. The review applicant said that he knew his brother’s date of birth. However, he also told the Tribunal that in the 2013 application the date of birth was a guess. In the Tribunal’s view, if the date of birth is known, as the review applicant now claims, there was no need to guess it in the previous application. The review applicant repeatedly told the Tribunal that he only completed his part of the form and somebody else completed the rest of the form. While the Tribunal accepts that this may have been the case, the Tribunal is also of the view that if the date of birth was known with certainty to the review applicant, there was no need for it to be guessed by the visa applicant or anyone completing the forms.

25. Following the hearing, the review applicant provided to the Tribunal a statement from the Embassy of South Sudan which states that prior to the Age Assessment Certificate being issued, a number of steps are undertaken, including an investigation of age by an age assessment officer. No explanation is offered as to what such an investigation may entail and the Tribunal finds that evidence unhelpful. An investigation may involve an independent verification of the probative evidence concerning one’s age or it may simply require an answer by the applicant on the application form. In the absence of any information of what investigation is carried out, the Tribunal does not accept the Age Assessment Certificate as probative evidence of the visa applicant’s age.

26. Ultimately, the Tribunal has not determined this visa applicant’s age because, for the reasons set out above with respect to Athieei Malou Duot, the Tribunal is not satisfied that the visa applicant’s parents are dead. The Tribunal is not satisfied the visa applicant cannot be cared for by his parents because each of them is dead, permanently incapacitated or of unknown whereabouts and the Tribunal is not satisfied the visa applicant meets r.1.14(b) and cl.117.211 and cl.117.221.

    Adhieu Malou Duot

27. This visa applicant claims to be born in June 2004 and to be a sister of the sponsor. The delegate accepted the visa applicant’s age and that she was under 18 years of age when the application was made. The review applicant subsequently provided to the Tribunal a copy of the visa applicant’s ID Card.

28. The delegate notes that the sponsor had previously made the application for the permanent visa and in that application he listed two siblings, Thon Akoi and Atem Thon, and stated that both were deceased. The visa applicant was not declared as a sibling of the sponsor in the sponsor’s own visa application. The sponsor also stated that his father Malou Duot Akoi and mother Alek Akech Ayii were deceased. In oral evidence to the Tribunal the review applicant explained that in the previous application, he filled his own part of the forms and somebody else in Africa filled in the other part. The review applicant said he did not check the forms before submitting them. The review applicant states that this sibling is his full sister and they share the same parents.

29. The delegate also referred to another application made in 2013 in which the sponsor had sponsored his siblings for resettlement in Australia. In this application the visa applicant was declared as the sponsor’s step-sister rather than the full sister as the parties now claim.

30. The delegate wrote to the visa applicant seeking her comments on the above information. In response, the sponsor provided a declaration in which he stated that in his interview with the Department he stated that his parents were deceased and he did not know the whereabouts of his siblings. In a further declaration, the sponsor explained that there were mistakes in the visa applicants’ dates of birth because he was uncertain about their dates of birth. The sponsor stated that some of the names were left out unintentionally from his own application as he did not pay attention to every detail.

31. The delegate was not satisfied that the visa applicant was the sister, and a relative, of the sponsor. Further, the delegate was not satisfied that the visa applicant could not be cared for by either parent because each of them was dead. The delegate was not satisfied the visa applicant was the orphan relative of the sponsor.

32. The review applicant and the visa applicant claim to be full siblings and to share both parents. For the reasons stated above, the Tribunal is not satisfied on the evidence before it that the visa applicant’s and the review applicant’s parents have passed away. The Tribunal is not satisfied the visa applicant cannot be cared for by her parents because each of them is dead, permanently incapacitated or of unknown whereabouts and the Tribunal is not satisfied the visa applicant meets r.1.14(b) and cl.117.211 and cl.117.221.

    Alek Matiop Deng

33. This visa applicant claims to have been born in June 2005 and to be a niece of the sponsor. The review applicant subsequently provided to the Tribunal a copy of the visa applicant’s ID Card. The delegate accepted the visa applicant’s age and that she was under the age of 18 when the application was made. The visa applicant stated that her father Malou Duot Lei and her mother Alek Ayii Nyang were deceased.

34. The delegate notes that the sponsor made his own visa application (as a dependent applicant) in 2008. In that application, the sponsor declared two siblings and stated that both were deceased. The visa applicant’s mother was not declared as the sponsor’s sibling in that application. The delegate also noted that the sponsor nominated other relatives for a visa in 2013 and did not include the visa applicant’s parent as his relative.

35. The delegate wrote to the visa applicant seeking her comments on the above information. In response, the sponsor provided a declaration in which he stated that he did not include his niece’s name in the application unintentionally and that he did not pay attention to every detail in the application. The sponsor stated that Nyandeng Malou Duot was his biological sister. The delegate noted that no evidence was provided to confirm that relationship.

36. The delegate found that there was insufficient evidence of a relationship between the visa applicant and the sponsor, noting that the sponsor’s explanation was inconsistent with the information in the sponsor’s earlier applications. The delegate found that the sponsor’s claim that he is an uncle of the visa applicant ‘lacks credibility’.

37. Further, the delegate was not satisfied that the visa applicant could not be cared for by either parent because each of them was dead.

38. The review applicant told the Tribunal that this visa applicant is his sister’s daughter and is his niece. He said that her parents died natural deaths. His sister died suddenly in her sleep and was buried. The visa applicant’s father drowned and his body was never found. The review applicant said there was no record of the deaths as there are no documents available in the countryside.

39. For the reasons stated above, the Tribunal has formed the view that the review applicant has previously provided incorrect answers in his dealings with Immigration and the Tribunal has found his evidence unreliable. For this reason, the Tribunal does not consider the review applicant’s and the visa applicant’s assertion about the deaths of the visa applicant’s parents to be persuasive or sufficient to satisfy the Tribunal of their deaths.

40. On the limited evidence before it, the Tribunal is not satisfied the visa applicant cannot be cared for by her parents because each of them is dead, permanently incapacitated or of unknown whereabouts and the Tribunal is not satisfied the visa applicant meets r.1.14(b) and cl.117.211 and cl.117.221.

    Atem Nyang Ayii Nyang

41. This visa applicant claims to be born in April 2000. He claimed to be a nephew of the sponsor. The visa applicant stated in his application that his father Nyang Ayii Nyang (the sponsor’s brother) passed away and his mother Mayr Sandiro also passed away.

42. The delegate notes that in 2013 the sponsor proposed the visa applicant for a humanitarian visa. In that application, the visa applicant stated that the sponsor was his biological brother. The visa applicant stated in that application that his name was Atem Malou Duot and that he was born on 1 January 1997. The application was refused because the visa applicant was found to be over the age of 18.

1. The sponsor was invited to comment on that information. In response, the sponsor stated that the visa applicant was his nephew (son of his uncle), which would suggest that the relationship between the visa applicant and the sponsor is that of cousins, rather than nephew and uncle. In oral evidence the review applicant also confirmed that this visa applicant is his cousin (his uncle’s son) and not his nephew.

2. The delegate wrote to the visa applicant stating that PIC 4020 may apply in relation to the information concerning the visa applicant’s relationship with the sponsor. In response, the visa applicant explained that as an orphan, he faced many difficulties and his date of birth was guessed, leading to misunderstanding in his application. The visa applicant stated the sponsor was his cousin (a son of his aunt). The visa applicant provided with his application an Age Assessment Certificate and the review applicant subsequently provided to the Tribunal a copy of the visa applicant’s ID Card.

3. The delegate accepted that the visa applicant was the cousin of the sponsor and therefore not a relative within the meaning of r.1.03. The delegate also found that the visa applicant provided false information in support of his visa application and that he did not meet PIC 4020(1). The delegate found that there were no compelling or compassionate circumstances for the waiver, concluding that the visa applicant did not meet PIC 4020.

4. Having regard to the visa applicant’s and the review applicant’s evidence, the Tribunal finds that the visa applicant is a cousin of the sponsor. The Tribunal finds that a cousin is not a ‘relative’ of the sponsor within the meaning of r.1.03. The Tribunal finds that the visa applicant cannot meet the requirements in r.1.14(a)(iii) and he is not an orphan relative of the sponsor. He does not meet cl.117.211 and cl.117.221.

   Matiop Ayual Bior Bior

5. This visa applicant claims to be born in June 1999 and to be the nephew of the sponsor.

6. The delegate notes that the visa applicant made several refugee visa applications previously. In the application made in 2005 the visa applicant stated that his name was Matiop Ayual Bior Ayual and that he was born in January 1984. He stated that his parents were deceased. In the 2007 application the visa applicant stated that his name was Matiop Ayual Bior and that he was born in May 1985. The visa applicant stated that his parents’ whereabouts was unknown. In 2014 the visa applicant stated that his name was Matiop Bior Ayual and his date of birth was 1 January 1988. In that application the visa applicant was proposed by the present sponsor and they declared their relationship as nephew and uncle.

7. The delegate wrote to the sponsor seeking his comments on the above information. The sponsor replied by acknowledging the inconsistencies. The sponsor confirmed that the visa applicant was a son of his father’s sister.

8. The visa applicant was also invited to comment on the application of PIC 4020, with the false or misleading information relating to his date of birth and his relationship with the sponsor. In his response, the visa applicant refers to the sponsor as his cousin. With respect to his date of birth, the visa applicant stated that it was ‘messed’ and that 10 June 1999 was the true date of birth as recorded in his passport. The visa applicant provided an Age Assessment Certificate and a letter from the Minister Plenipotentiary in support of the Age Assessment Certificate. The review applicant subsequently provided to the Tribunal a copy of the visa applicant’s ID Card.

9. The delegate found that the visa applicant gave false information about his date of birth, stating he was born in June 1999, and also about his relationship with the sponsor. The delegate found that the visa applicant did not meet PIC 4020(1) and that there were no grounds for the waiver. The delegate also found that as a cousin, the visa applicant was not a relative of the sponsor within the meaning of r.1.03.

10. Having regard to the visa applicant’s evidence, the Tribunal finds that the visa applicant is a cousin of the sponsor. The Tribunal finds that a cousin is not a ‘relative’ of the sponsor within the meaning of r.1.03. The Tribunal finds that the visa applicant cannot meet the requirements in r.1.14(a)(iii) and he is not an orphan relative of the sponsor. He does not meet cl.117.211 and cl.117.221.

    Chol Malou Duot Lei

11. This visa applicant claims to be born in February 1999 and to be a brother of the sponsor. The visa applicant stated that his father Malou Duot Lei and his mother Alek Ayii Nyang were deceased.

12. The visa applicant provided with his application the Age Assessment Certificate and a letter from the Minister Plenipotentiary in support of the Age Assessment Certificate. The visa applicant included his school records showing that he was due to complete a Bachelor of Science degree at the US International University in Kenya in May 2014. The delegate noted that the degree is approximately of three years’ duration, so the visa applicant would have been 18 years old in 2011 and 22 at the time when the application was made. The review applicant subsequently provided to the Tribunal a copy of the visa applicant’s ID Card.

13. The delegate noted that the sponsor previously sponsored the visa applicant as his brother in an application made in 2013 and stated that the visa applicant’s date of birth was January 1989. The visa applicant was identified in that application as Chol Malou Duot Lei. In his 2008 application, the sponsor declared two siblings and stated that both were deceased. The sponsor did not declare the visa applicant as a sibling.

14. The delegate wrote to the visa applicant seeking his comments on the above information in relation to the application of PIC 4020. The visa applicant replied by confirming that the sponsor did not declare him on his own visa application because he was a dependent applicant at the time and was not ‘keen’ or sufficiently independent to check the details of his application. The sponsor also did not mention his siblings because he did not know their whereabouts.

15. The delegate found that the visa applicant gave false or misleading information in support of his visa application, being the date of birth showing that he was under the age of 18 at the time of the application, as well as information concerning his relationship with the sponsor. The delegate found that the visa applicant did not meet PIC 4020(1) and found there were no compassionate or compelling circumstances to exercise the waiver. The delegate found that the visa applicant did not meet PIC 4020 and cl.117.223.

16. In oral evidence, the review applicant confirmed that the visa applicant completed a three-year course in IT, which started in 2014. The review applicant did not know when the visa applicant completed high school. When asked how his brother was able to enter university at the age of 15, the review applicant explained that his brother was bullied at school because he was too tall and could not remain at that school. That may be the case, but the review applicant’s evidence does not explain how the visa applicant would have been able to enrol in a university at such a young age, particularly if he was forced to leave secondary schooling due to bullying.

17. The review applicant submits that he himself was born in 1989 and they are not twins, so his brother could not have been born in 1989. The review applicant said that 1989 was the date of birth his brother gave to the school and in order to register with UNHCR. The review applicant’s evidence suggests that his brother has given false information about his age to UNHCR, to the education authorities and in his 2013 application. If that is the case, the Tribunal finds the visa applicant’s evidence unreliable. On the review applicant’s own evidence, this brother has been untruthful with various authorities in relation to his date of birth. The review applicant repeatedly told the Tribunal that he is now telling the truth but the Tribunal does not consider that assertion convincing.

18. The Tribunal does not consider it plausible that the visa applicant would have been able to enter university at the age of 15, particularly as the review applicant claims he had problems with his secondary schooling. This issue has not been explained to the satisfaction of the Tribunal. The Tribunal acknowledges that there are a number of documents concerning the visa applicant’s age presented with the application, including the Age Assessment Certificate, passport and ID cards, but the review applicant’s evidence is that the visa applicant may have provided a false date of birth at the time of registration and to various authorities. The Tribunal does not consider that evidence reliable. The Tribunal’s concerns with the probative value of the Age Assessment Certificate are set out above. The combination of these concerns causes the Tribunal not to be satisfied that the visa applicant was born in 1999 as he now claims. The Tribunal is not satisfied the visa applicant was under the age of 18 when the application was made. The Tribunal is not satisfied he meets r.1.14(a)(i).

19. Further, the visa applicant claims to be a full brother of the sponsor. For the reasons stated above, the Tribunal is not satisfied the visa applicant’s parents have passed away. The Tribunal is not satisfied the visa applicant cannot be cared for by his parents because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied the visa applicant meets r.1.14(b) and that he is an orphan relative of the sponsor. Given this finding the Tribunal has not requested the parties to undertake DNA testing to confirm their relationship. The visa applicant does not meet cl.117.211 and cl.117.221.

    Chol Yak Atem Duot

20. This visa applicant claims to be born in October 1998 and claims to be a cousin of the sponsor. The visa applicant stated that his father Malou Duot Lei and mother Alek Ayii Nyang were deceased.

21. The delegate noted that in 2013 the sponsor proposed the visa applicant for a refugee visa and in that application the visa applicant stated that the sponsor was his step-brother. The sponsor was invited to comment on that information and he stated that the information provided in his previous application was due to a misunderstanding of the difference between cousin and step-brother. The sponsor stated that the visa applicant is a ‘true cousin’ and his date of birth was guessed. The review applicant subsequently provided to the Tribunal a copy of the visa applicant’s ID Card.

22. The Department also wrote to the visa applicant inviting his comments in relation to the application of PIC 4020 with respect to the information concerning his relationship with the sponsor and his date of birth. In response, the visa applicant stated that in the 2013 application his relationship with the sponsor was incorrectly identified as that of step-brothers due to the misunderstanding of the difference between cousin and step-brother. The visa applicant stated that the forms were completed with the help of another person. The visa applicant stated, with respect to his date of birth, that it was a guess and his true date of birth is 10 October 1998, as stated in his passport. The applicant included with his submission the Age Assessment Certificate and a letter from the Minister Plenipotentiary in support of the Age Assessment Certificate.

23. The delegate found that the applicant had given false information in support of his visa application in relation to his date of birth and his relationship with the sponsor. The delegate accepted that the visa applicant was the cousin of the sponsor and therefore not a relative. The delegate also found that the visa applicant did not meet PIC 4020(1) and found that there were no compelling or compassionate circumstances for the waiver.

24. Having regard to the visa applicant’s and the review applicant’s evidence, the Tribunal finds that the visa applicant is a cousin of the sponsor. The Tribunal finds that a cousin is not a ‘relative’ of the sponsor within the meaning of r.1.03. The Tribunal finds that the visa applicant cannot meet the requirements in r.1.14(a)(iii) and he is not an orphan relative of the sponsor. He does not meet cl.117.211 and cl.117.221.

25. The Tribunal has also considered the oral evidence of the five witnesses. The Tribunal considers much of that evidence unhelpful. Some of the witnesses confirmed the relationship between the visa applicants and the review applicant. If that was the sole issue before the Tribunal, the Tribunal would have assessed the relationships through DNA testing but as this was not the determinative issue, the Tribunal did not pursue the testing. One of the witnesses confirmed contact between the visa applicants and the review applicant and one of the visa applicant’s dates of birth. Again, the Tribunal does not consider such evidence to be determinative, nor is it sufficient to address the Tribunal’s concerns set out above. Mr Lueth told the Tribunal that he met the family around 2012 and again more recently. He confirmed the children’s ages and said that he learned about the parents’ deaths from the review applicant and other members of the community. The Tribunal acknowledges that evidence but would prefer independent and verifiable evidence of deaths.

26. The review applicant told the Tribunal that the situation for the visa applicants is not easy and he wants to bring them to Australia. The Tribunal acknowledges that evidence and also accepts evidence that the review applicant has provided financial support to the visa applicants. However, these matters do not establish the visa applicants’ eligibility for the visa and do not address the Tribunal’s concerns set out above.

27. For the reasons set out above, the Tribunal is not satisfied that any of the visa applicants meet the definition of ‘orphan relative’ in r.1.14 and the Tribunal has found that they do not meet the requirements of cl.117.211 and cl.117.221.

28. There is no evidence that the visa applicants are children of the sponsor and they do not meet the requirements for the grant of the Child or Adoption visas.

    Conclusion

29. 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

30. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Kira Raif
    Senior Member