Fefey (Migration)

[2019] AATA 4413

Fefey (Migration) [2019] AATA 4413 (10 October 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Oretha Fefey

VISA APPLICANTS:  Mr Mohamed Gaye
Ms Fate Gaye
Mr Justine Gaye
Ms Princess Gaye
Ms Francess Gaye

CASE NUMBER:  1617667

DIBP REFERENCE(S):  F2016/075659

MEMBER:Kira Raif

DATE OF DECISION:  10 October 2019

DATE CORRIGENDUM

SIGNED:21 October 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1. The words ‘The visa applicants are nationals of Libya born between 1999 and 2007’ at paragraph 2 should be replaced with ‘The visa applicants are nationals of Liberia born between 1999 and 2007’.

   Kira Raif

   
   

   Senior Member

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   REVIEW APPLICANT:  Ms Oretha Fefey

   VISA APPLICANTS:  Mr Mohamed Gaye
   Ms Fate Gaye
   Mr Justine Gaye
   Ms Princess Gaye
   Ms Francess Gaye

   CASE NUMBER:  1617667

   DIBP REFERENCE(S):  OSF2016/075661

   MEMBER:Kira Raif

   DATE:10 October 2019

   PLACE OF DECISION:  Sydney

   DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the second, third and fifth named visa 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.

   The Tribunal affirms the decisions not to grant the first named and fourth named visa applicants Child (Migrant) (Class AH) visas.

   Statement made on 10 October 2019 at 7:32am

   CATCHWORDS
   MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – children of sponsor’s brother – children biological or adopted formally or by cultural custom – genetic testing to confirm relationships – decision under review remitted for second, third and fifth-named applicants, affirmed for first and fourth-named applicants

   LEGISLATION

   Migration Act 1958 (Cth), s 65

   Migration Regulations 1994 (Cth), r 14, Schedule 2, cl 117.211

   STATEMENT OF DECISION AND REASONS

   Application for review

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 September 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958.

3. The visa applicants are nationals of Libya born between 1999 and 2007. They applied for the visas on 14 March 2016. The visa applicants previously made the applications for the Child visas in 2012. These applications were refused and the visa applicants were found to have provided bogus birth records. The sponsor sought review with this Tribunal but subsequently withdrew the application.

4. In this case, the delegate refused to grant the visas because the delegate was not satisfied the visa applicants were orphan relatives of the sponsor, as required by cl.117.211. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

5. The review applicant appeared before the Tribunal on 29 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Liberian English and English languages. The review applicant was represented in relation to the review by her registered migration agent.

   Relevant law

6. 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.

7. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

8. 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.

9. ‘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?

10. The review applicant provided to the Tribunal copies of the primary decision records in relation to each of the visa applicants.

11. The visa applicants identified their adoptive parents as their parents on the application forms and stated that their adopted parents were deceased. There is a statement from the sponsor, accompanying the visa applications, in which she outlined the family circumstances. The sponsor stated that she first met the children when she was about to leave Guinea for Australia. Her half-brother Thomas Gaye and his wife Everline Marshall moved to Conakry. Thomas died in hospital soon after. The sponsor states that she believed all five children to be the children of Thomas and Everline and full siblings. Before making the application, she updated the children’s Red Cross cards and updated their photographs. She does not know why the cards would be fraudulent and Red Cross would not issue such cards to a person who is not a refugee. A friend helped prepare the children’s birth records. The sponsor states that if there are mistakes on the birth certificates, it is because she and the children thought that Thomas and Everline were the parents for all the children. She later asked Mohamed about the relationships and he told her that he and Fate are not the biological children of Everline and their mother was a relative of Everline and this was a secret from the other children. He did not know who their father was. Mohamed and Fate had lived with Everline since he was very small and their mother died when Fate was born and when Mohamed was about three years old. The other three children are the children of Thomas and Everline.

12. In a submission to the delegate dated 2 July 2013, the parties claim that all children are considered to be the children of Thomas and Everline either as biological children or through customary adoption. It is stated that Princess is not the daughter of Thomas and Everline but is Thomas’ granddaughter. His daughter Edith bore Princess when she was very young and then returned to Liberia, leaving Princess with Thomas.

13. In an undated submission from the applicants’ representative, it is noted that the terms niece and nephew include adopted children of siblings. It is submitted that Mohamed, Fate and Princess are paternal nieces and nephew of the sponsor and meet the definition of ‘orphan relative’. The two younger children Francess and Justine are the natural children of Thomas and Everline.  It is submitted that when the first application was lodged in 2012, the sponsor believed the children to be full siblings and the children of her deceased brother Thomas and his widow Everline. Everline died suddenly in February 2011 and the children were cared for by a family friend. 

14. With respect to adoption arrangements, it is submitted that Mohamed, Fate and Princess were under the age of 18 when they became part of Thomas’ and Everline’s family. It is submitted that the adoption arrangements, for the purpose of r.1.04(1)(c) are not known but unlikely to have been formal but it is submitted that Thomas and Everline assumed parental roles in relation to the children that were in the nature of adoption. It is submitted that adoption took place in accordance with recognised custom. It is submitted that even if adoption laws existed in Guinea at the relevant time, it would not have been reasonably practical in the circumstances for Everline and Thomas to arrange a formal adoption of the children if they were living in a refugee camp with no access to official documentation or courts. The mother of Mohamed and Fate had died and the children needed to be cared for, which was done by Everline. Princess’ mother left her with Thomas who cared for her. It is submitted that the children were customarily adopted in accordance with the requirements of r.1.04.

15. The sponsor provided a further statutory declaration dated 29 February 2019. She states that she mistakenly referred to Thomas as her half-brother and he is in fact her full brother. The sponsor states that a friend helped arrange the children’s birth certificates, which were found to be false but they were issued by the Red Cross. The sponsor explained why her relationship with the ‘family friend’ was not declared in her visa application. She states that in 2012 she believed the children to be the biological children of her brother but later found that this was not the case. The sponsor outlined the arrangements for the care of the children.

16. The delegate noted the sponsor’s explanations about her relationships with the children. The delegate was not satisfied that the visa applicants and the sponsor were related as claimed, and also with the visa applicants’ identity, given the lack of birth records. The delegate was not satisfied the visa applicants were orphan relatives of the sponsor.

17. The review applicant confirmed to the Tribunal in oral evidence that the visa applicants had previously applied for the visas but were refused. Later they were told that the birth certificates were false and she was told that if the application was refused, there would be a 10 year exclusion period. The review applicant said that the previous birth certificates identified her brother and his wife as the parents of the children. The review applicant said that after her brother died, his wife told him that the children were her children and soon after, she went to Australia. The review applicant said she did not know about the children’s backgrounds. She asked a friend who was caring for the children to obtain the birth certificates. She could not explain how the birth certificates were obtained which showed her brother as the father of all the children.

18. The Tribunal is concerned about the reliability of the documents issued in the visa applicants’ home country because there does not appear to be any independent verification of the information.

19. The applicant states that the children were brought up within her brother’s family. All the children lived under one roof and were taken care of by her brother’s family.

20. The review applicant’s representative submits that the children were regarded as members of the family unit of the review applicant’s brother and when the parents passed away, other relatives took over the care of the children.  The review applicant said that all the children came to her brother’s household when they were young babies. The representative notes that in the original sponsorship forms the children are declared as adoptive relatives.

21. The review applicant told the Tribunal that she has spent a lot of money to support the children and she would not have done that if they were not her brother’s children. She has also spent over seven years pursuing the case, which she would not have done if the children were not related. She refers to the difficult situation in Africa and said that she wants the children to have a better future. The Tribunal acknowledges that evidence.

22. The review applicant also provided to the Tribunal the visa applicants’ school records and identity documents. In her submission to the Tribunal of 22 May 2019 the review applicant refers to the delegate’s reasoning. The review applicant notes that the DNA test confirms her relationship with Francess and Justine and that Mohamed and Fate are biological half-siblings. The review applicant states that Princess is her grand-niece and Mohamed, Frances and Fate are her brother Thomas’ step-children. The review applicant claims she is a relative of the visa applicants. 

23. At the Tribunal’s request, the visa applicants and the review applicant had completed genetic testing to confirm their relationship. The results of the tests were received by the Tribunal in March 2019. The results essentially confirm a half-sibling, rather than full sibling relationship between Mohamed and Fate. The test confirms the aunt-niece or nephew relationship between the sponsor and June and Francess and an aunt / nephew-niece relationship between Justine, Princess and Francess. Thus, the DNA test results are not inconsistent with the applicants’ claims that Justine and Francess are full siblings and that Princess is the granddaughter of their parent (their niece). The test results do not support the applicants’ claims that Mohamed and Fate shared the same parents.

24. Having regard to the results of the DNA test, the Tribunal finds that Francess and Justine are nieces, and relatives, of the sponsor and that Princess is the niece of Francess and a grand-niece of the sponsor. That relationship is not recognised as a family relative. The other children claim to be adopted rather than biological children of the sponsor’s brother. In October 2019 the review applicant provided to the Tribunal an Adoption Order in relation to Fate Gaye, dated 17 March 2006, showing that she was adopted by Thomas Gaye. Having regard to that evidence, the Tribunal accepts that Fate was an adopted child of the review applicant’s brother and is a niece and a relative of the review applicant.

25. The Tribunal finds that Francess, Justine and Fate are relatives of the review applicant and they meet r.1.14(a)(iii). There is no evidence that they have a spouse or de facto partner and they meet r.1.14(a)(ii).

26. With respect to the children’s identity, the review applicant states that the children now have new school ID cards as proof of their identities.  The review applicant states that she had visited the children over the Christmas holidays and has been in constant contact with them. She also provided the children with financial support. The review applicant states that the children lived in Guinea with a family friend. Their father Thomas (the review applicant’s brother) died of cancer in 2010 and his death record was previously submitted to the Department. Thomas’ wife Everline was the mother of the visa applicants. After Thomas’ death, the review applicant took the visa applicants and their mother Everline to live in Conakry city and there were photos of them together, which are missing. The visa applicants changed schools and ID cards from the Conakry Refugee school have been provided. Everline died at the end of 2010 and there should be a document from the cemetery confirming her interment.

27. Having regard to the children’s personal records, the Tribunal accepts that Francess, Justine and Fate are under the age of 18. They meet r.1.14(a)(i) and r.1.14(a).

28. The Tribunal has found that Francess, Justine and Fate were children of the review applicant’s brother Thomas. The review applicant provided to the Tribunal evidence of death for Thomas and his partner Everline. The Tribunal arranged for these documents to be verified and in September 2019 received confirmation that the documents were genuine. Having regard to that evidence, the Tribunal is satisfied that Francess, Justine and Fate cannot be cared for by their parents because each of them is dead. These visa applicants meet r.1.14(b).

29. The review applicant’s evidence to the Tribunal is that she has been providing financial and emotional to support to the children and evidence of such support has been provided. She has also expressed willingness to provide such support in the future and indicated her capacity to do so. There is no compelling reason to believe that the grant of a visa would not be in the best interests of these visa applicants. The Tribunal finds that these visa applicants meet r.1.14(c) and that they are orphan relatives within the meaning of r.1.14. The Tribunal finds that Francess, Justine and Fate meet cl.117.211 and cl.117.221.

30. The Tribunal has also considered these requirements with respect to the other children. There is no evidence of formal adoption in relation to Mohamed and Princess. The review applicant claims there was customary adoption and that formal adoption was not available. The Tribunal does not accept that evidence. The Tribunal is prepared to accept the review applicant’s evidence that all of the children were raised in her brother’s household and considered as adopted children by her brother’s family but that is not sufficient to establish customary adoption. In August 2019 the Tribunal wrote to the review applicant inviting her to provide evidence of the children’s adoption. The review applicant presented evidence in relation to Fate but not evidence in relation to Mohamed and Princess. The review applicant has not presented persuasive evidence that the arrangements were made in accordance with the usual practice or a recognised custom, in the culture or cultures of the adoptee and the adopter. Significantly, the review applicant has not satisfied the Tribunal that formal adoption was not available or not reasonably practicable. While that is the claim put forward by the review applicant, noting that the family lived in a refugee camp, the Tribunal is mindful that there is evidence of a formal adoption order in relation to Fate and it is unclear why a formal adoption was available in relation to that child but not in relation to the other children.

31. On the limited evidence before it, the Tribunal is not satisfied that Mohamed and Princess are the children, including the adopted children of the review applicant’s brother. The Tribunal is not satisfied they are relatives of the review applicant and they do not meet r.1.14 and cl.117.211 and 117.221.

    Conclusion

32. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa in relation to Fate, Francess and Justine.

33. The Tribunal has found that the criteria for the grant of a Subclass 117 visa are not met by Mohamed and Princess. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

34. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the second, third and fifth named visa 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.

35. The Tribunal affirms the decisions not to grant the first named and fourth named visa applicants Child (Migrant) (Class AH) visas.

    Kira Raif
    Senior Member