Gaar (Migration)

[2021] AATA 4067

Gaar (Migration) [2021] AATA 4067 (4 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Abuk Bak Wien Gaar

VISA APPLICANTS:  Miss Martha Michael Bak Geng
Master Abraham Michael Bak Geng

CASE NUMBER:  1805076

HOME AFFAIRS REFERENCE(S):          OSF2017015375

MEMBER:Peter Vlahos

DATE:4^th October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

· cl 117.211of Schedule 2 to the Regulations; and

· cl 117.221of Schedule 2 to the Regulations.

This  Statement was made on  4^th  October 2021 at  8.30am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – visa applicants ‘parents are dead – Tribunal accepts evidence and explanations that the applicants’ have no surviving parents – best interests of children – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03,1.14; Schedule 2, cls 117.211,117.221

CASES
Nguyen v MIMA (1998) 158 ALR 639

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 Home Affairs on 15 January 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 4 May 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.

3. 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 which requires that at the time of application the visa the visa applicant is an orphan relative of an Australian relative (cl. 117.211 (a)), or is not a 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.

4. ‘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 also is an Australian citizen, an Australian permanent resident, or eligible New Zealand citizen: cl. 117.11. 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): see, reg. 1.03. In the present Ms Abuk Bak Wien Gaar is the relevant Australian relative.

5. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211of Schedule 2 of the Regulations because no credible evidence had been provided to support the claim that either of the applicants’ parents are deceased. The delegate therefore was not satisfied that the applicants were orphans as claimed in their applications.

6. The review applicant appeared before the Tribunal on 29 September 2021 to give evidence and present arguments via teleconference due to the continuing state of emergency in place in Victoria because of the Covid-19 Pandemic. The Tribunal also received oral evidence from witnesses, Ms Abuk Bol and Ms Acol Goou. Both review applicants were present at the hearing but did not choose to provide evidence.  

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.

8. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicants meet the criteria for the grant of a Child (Class AH) Orphan Relative (Class 117) Visa.

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

11. 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.

12. ‘Orphan relative’ is defined in reg 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): reg 1.03.  In the present case, Ms Abuk Bak Wien Gaar, is the relevant Australian relative.

13. For the reasons below, the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants were orphan relatives of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and to be met at the time of decision.

    Age – reg 1.14(a)(i)

14. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The first-named applicant, Ms Martha Michael Bak Geng (‘Martha’) was born on 24 June 2003, and therefore was 14 years-of-age at the time of application. The second-named applicant, Master Abraham Mathem Michael Bak Geng (‘Abraham’) was born on 24 September 2009 and therefore was 8 years-of-age at the time of application. Accordingly, r.1.14 (a)(i) was met at the time of application in respect of each applicant. Regulation 1.14 (a)(i) does not continue to be met at the time of decision by the applicant Martha because she has turned 18 years-of-age at the time of decision.

    Spouse or de facto partner – reg 1.14(a)(ii)

15. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The evidence provided by Ms Abuk Bak Wien Gaar, the children’s aunt (the sister of their mother) is that neither of the applicants is or has been married or in a de facto relationship and therefore there is no evidence before the Tribunal to suggest otherwise. Accordingly, r. 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)

16. 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.

17. A Republic of South Sudan ‘Age Assessment Certificate’ certifying that the applicants, Ms Martha Michael Bak Geng and Master Abraham Mathem Michael Bak Geng certify both as the children of the applicant’s sister Mrs Alia Bak Wieu. As noted in the decision record, the delegate was concerned as to why the review applicant – the aunt of the children – did not reveal in a previous application, the fact that she had a sister – the mother of the – the visa applicants. The review applicant explained that as she did in her statutory declaration submitted to the Department with applicants’ application[1] that she did not include her sister’s details when she applied for a Humanitarian visa to Australia on the understanding that her sister was not going migrate (at later date) to Australia. The Tribunal accepts this explanation as provided to the Tribunal. Also, it is noted by the Tribunal that the review applicant has provided as much information as she could from official government sources – in South Sudan that would be expected from a close relative of the applicants. Further, from her description of the whereabouts of the applicants after their fleeing South Sudan to Egypt and the description she provided to the Department in her statutory declaration and to the Tribunal at the hearing as to how her elderly mother was currently trying to care for children and that she provides funds on a monthly basis to her mother to provide food and shelter for the children is compelling proof that she is as she claims a close relative of the applicants within the meaning of r.1.03.

    [1] AAT File for additional documentation provided concerning the visa applicants

18. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

19. 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.

20. The delegate refused the application because he could not be satisfied on the evidence before him that any of the visa applicants’ parents were deceased. In the decision, the delegate was not satisfied that the applicants’ mother has died because the death certificate was issued to a ‘Mr Michael Bak Gang’ in 2016. Indeed, the delegate’s concern was – how could as was claimed the father who had disappeared – feared dead in 2015 – had provided a death certificate extract. The delegate, went on to conclude that ‘he accorded little weight to this (death) certificate as evidence of the applicants’ mother’s death due to unreliability of South Sudanese Death Certificates’ as reported by DFAT.[2] The review applicant explained to the Tribunal that the name on the certificate was that of a ‘cousin who had obtained the certificate.’ The father, of the applicants has remained incognito since 2015. As for the fate of the mother of the applicants, she had been disabled due to illness (the Tribunal was told) and later died of her wounds, having been shot in the town of Juba. The Tribunal accepts as credible the explanation provided by the review applicant and by the witnesses that the children did not have their parents and were living in a refugee camp in Egypt with a frail and aging grandmother and assisted by the aunt with money for their day-to-day needs. If the delegate had issues with the death certificate in question, the delegate should have instigated the processes at his disposal to verify the authenticity of the document he questioned. This was not done – it should have been done if that was the main concern of the delegate. The evidence of a ‘mistake’ having occurred is not totally beyond the realm of the impossible in countries like South Sudan nor is the ability for incentive for forgeries to occur but on balance, the evidence on the whole, the ancillary documents provided, the explanations which accompanied them explaining the irregularities and the lack of departmental probing of particular documents as submitted, leads the Tribunal to accept evidence and explanations as provided that the applicants’ have no surviving parents.

    [2] DFAT Country Information Report – South Sudan – 5 October 2016 at pp. 24-25

21. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – reg 1.14(c)

22. 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 applicants. Strong representations were made in written submissions[3] on behalf of the applicants and by the witnesses questioned by the Tribunal to say that their only surviving relative, their aunt in Australia, would be very much in their interest. The Tribunal was told that that the aunt was able and willing to provide for them a stable family environment and to provide them with the ability to educate themselves. These possibilities were non-existent in a refugee camp in Egypt and being taken care of by an aging and ill grandmother with no actual means of supporting them in the very near future.

    [3] see AAT File, submission by applicant’s registered migration agent.

23. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

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

25. The Tribunal finds that the visa applicant, Ms Martha Michael Bak Geng does not continue to satisfy the criterion in cl 117.211, but only because she has turned 18. It follows that cl 117.221 is met.

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

    DECISION

27. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl 117.211of Schedule 2 to the Regulations; and

    ·cl 117.221of Schedule 2 to the Regulations.

    Peter Vlahos
    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.