Ko (Migration)

[2024] AATA 944

Ko (Migration) [2024] AATA 944 (14 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Plar Ko

VISA APPLICANT:  Miss Naw Paw Khu

CASE NUMBER:  2300756

HOME AFFAIRS REFERENCE(S):          BCC2022/4746387

MEMBER:Alison Murphy

DATE:14 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.232 of Schedule 2 to the Regulations.

Statement made on 14 March 2024 at 2:57pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – sponsorship by relative – sponsor uncle and applicant niece – reasonable explanation for lack of official documentation – sponsor lost documents while refugee in third country – age and poor health – evidence from sponsor’s daughter, applicant and church pastor consistent with available information – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 600.232(2)

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 made on 2 December 2022 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 8 August 2022. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.232, which requires the visa applicant to satisfy the Minister that the visa applicant as to the relationship between the visa applicant and the sponsor.

4. The review applicant appeared before the Tribunal on 14 March 2024 by video to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (by telephone from Myanmar) and the sponsor’s adult daughter, Ms Sheenary Win. The Tribunal hearing was conducted with the assistance of an interpreter in the Karen and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies the requirements of cl 600.232.

7. Clause 600.232(2) requires that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and a relative of the visa applicant. The visa applicant is sponsored by the review applicant.

8. The department’s records indicate the sponsor is an Australian citizen. In assessing whether he is a ‘settled’ Australian citizen, the Tribunal has had regard to regulation 1.03 which defines ‘settled’ as follows:

   Settled, in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period.

9. ‘Lawfully resident’ and ‘a reasonable period’ are not defined in regulation 1.03. The Department’s policy guidelines state that if the sponsor has been lawfully resident in Australia for two years, discounting short trips outside of Australia for up to four months), the assessment of ‘settled’ will be considered met. However if the sponsor has been outside of Australia for more than four months in the two year period immediately preceding the date the visa application was made, they must provide evidence that they are currently settled in Australia.

10. In this case the sponsor’s movement records indicate that he was born in 1945 and his country of origin is recorded as Myanmar. He first entered Australia in 2008 on a subclass 204 refugee category visa and he has only departed Australia twice since for short periods, most recently in 2018. The Tribunal is satisfied that that he is at least 18 years of age and he is ordinarily resident in Australia.

11. In assessing whether the review applicant is a relative of the visa applicant, the Tribunal notes that ‘relative’ is defined in regulation 1.03 as follows: Relative, in relation to a person, means:

    (a) in the case of an applicant for a Subclass 200 (Refugee) visa or a protection visa:

    (i) a close relative; or

    (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step-grandchild, step-aunt, step-uncle, step-niece, step-nephew; or

    (iii) a first or second cousin; or

    (b) in any other case:

    (i) a close relative; or

    (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step-grandchild, step-aunt, step-uncle, step-niece, step-nephew.

12. ‘Close relative’ is defined in regulation 1.03 as follows: Close relative, in relation to a person, means:

    (a) the spouse or de facto partner of the person; or

    (b) a child, parent, brother or sister of the person;

    (c) or a step-child, step-brother or step-sister of the person.

13. In this case the sponsor claims the visa applicant is his niece, being the daughter of his brother. If that is the case the sponsor will be a relative of the visa applicant for the purposes of regulation 1.03. The delegate’s decision records that the applicant had failed to provide sufficient documentary evidence of their relationship and therefore the delegate was not satisfied she was a relative of the sponsor as defined.

14. The sponsor is an elderly man with hearing difficulties and health issues. Although he was present at the Tribunal hearing, he had difficulty understanding the interpreter or following the matters discussed and the bulk of the evidence was given by his adult daughter Ms Sheenary Win.

15. In a letter to the Tribunal, the sponsor stated he is an old man who can no longer travel overseas to see his niece and he wishes to invite her to Australia so that she can meet all her cousins and other relatives in Melbourne. He states that their visa application was rejected because they cannot prove on paper that they are related, but that 95% of people from Myanmar have no documents to prove their relationship. He states he wishes to see his niece before he dies. He also provided two photographs showing him with his brother and niece on his last trip to Myanmar.

16. At hearing the sponsor’s adult daughter gave evidence that she was one of the sponsor’s three adult children, all of whom reside in Australia. She told the Tribunal her father fled Myanmar in 1992, arriving at a refugee camp in Thailand in 1997 and being resettled to Australia along with his wife in children in 2008. This is consistent with departmental records showing the sponsor entered Australia as the holder of a Class XB humanitarian visa in 2008 and records his country of origin as Myanmar.

17. Ms Sheenary gave evidence that her father used to have identity documents from Myanmar but he lost them during the years following his flight from Myanmar in 1992, noting that he did not arrive in a refugee camp in Thailand until 1997. She confirmed her father had no longer had any official documents issued by the authorities in Myanmar that might prove his family composition or his relationship to the visa applicant.

18. The Tribunal notes the family is of Karen ethnicity and DFAT reports that conflict between the military, the Karen National Union /Karen National Liberation Army and other ethnic armed organisations since 1984 has led to approximately 90,000 Karen seeking protection in Thailand. It notes that while the Myanmar authorities issue a wide variety of identity and other official documents, the specific documents a person holds may depend on their class of citizenship and their capacity to negotiate Myanmar’s complicated, inefficient and frequently corrupt bureaucracy.[1]

    [1] DFAT DFAT Country Information Report: Myanmar 11 November 2022 at 3.18 – 3.21; 5.26

19. Other credible sources confirm that Myanmar has a recent history of arbitrarily removing and destroying identity documents held by members of minority groups and that displaced persons in particular have difficulty obtaining identity documents even where they are legally entitled to do so.[2] In these circumstances the Tribunal accepts there to be a reasonable explanation as to why the sponsor is unable to provide his birth certificate or other identity documents from Myanmar.

    [2] European Network on Statelessness and the Institute on Statelessness and Inclusion, ‘Statelessness in Myanmar: Country Position paper May 2019’ (May 2019) Stateless Journeys accessible at: <>

    Ms Sheenary gave evidence that her father was the oldest of four brothers (being the sponsor Pla Ko, Po Thay, Da Ka and Paw Lay) and the visa applicant is the daughter of the youngest brother Paw Lay. This is consistent with the visa application in which the visa applicant names her parents as Saw Paw Lay and Naw Paw Lay Nar, as well as the visa applicant’s oral evidence at hearing. The visa applicant’s passport confirms her identity and the name of her father. A translated copy of her Citizenship Scrutiny Card confirms her father’s name as Saw Paw Lay and that she is of Karen ethnicity.

20. Ms Sheenary gave evidence that she had travelled with her parents to Myanmar in 2018 and met her father’s siblings and their children, including the visa applicant. This is consistent with the sponsor’s movement records and was also confirmed by the visa applicant in her oral evidence. Ms Sheenary gave evidence that her father had sponsored his niece’s education in Myanmar and wanted to see her one more time but is no longer well enough to travel himself.

21. The visa applicant has provided a reference from the Karen Christian Baptist Church in Eindayaza which records she has been working there as a volunteer teacher and is taking time off to visit her uncle in Australia. A separate reference from Pastor Reverend Douglas of that church states that her father Saw Paw Lay is the brother of Saw Plar Ko (the sponsor) and that the visa applicant is the niece of the sponsor.

22. Overall I consider that the claimed relationship between the visa applicant and the sponsor is consistent with the available information about the sponsor’s origins and migration history and there is a reasonable explanation for the lack of official documentary evidence that would otherwise demonstrate these matters conclusively. In view of all of the evidence before me, I accept that the sponsor is the paternal uncle of the visa applicant as claimed and it follows that the visa applicant is a ‘relative’ of the sponsor for the purposes of regulation 1.03.

23. For the above reasons, the Tribunal is satisfied that the visa applicant is sponsored by a settled Australian citizen who is at least 18 and a relative of the visa applicant. Therefore she meets the criteria set out in clause 600.232(2).

    DECISION

24. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.232 of Schedule 2 to the Regulations.

    Alison Murphy
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …

    1.05A  Dependent

    (1)  Subject to subregulation (2), a person (the first person) is dependent on another person if: 

    (a)  at the time when it is necessary to establish whether the first person is dependent on the other person: 

    (i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person  for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    (2) …