Ladu (Migration)

[2021] AATA 5104

Ladu (Migration) [2021] AATA 5104 (14 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Yata Ladu

VISA APPLICANTS:  Mr Yona Mori
Miss Lona Sebila
Mr Benjamin Laku

CASE NUMBER:  1900130

HOME AFFAIRS REFERENCE(S):          2017023609 OSF2017/023609

MEMBER:Christine Kannis

DATE:14 December 2021

PLACE OF DECISION:  Perth

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

Statement made on 14 December 2021 at 4:21pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – parents dead, permanently incapacitated or of unknown whereabouts – relationship between review applicant and visa applicants’ mother – inconsistent family composition given in different applications and interviews – no DNA test results or post-hearing submissions provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.14(a)(iii), Schedule 2, cl 117.211(a), 117.221

CASE
EC v MIMIA [2004] FCA 978

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 Home Affairs on 14 November 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 18 October 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 (the Regulations). Relevantly to this case, they include cl 117.211 and cl 117.221.

3. The visas were refused because the delegate was not satisfied that the visa applicants could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts and, therefore, they did not meet cl 117.211.

4. The review applicant appeared before the Tribunal on 26 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Bishop Charles Alfred William Lasu, Mr Emmanuel Lomoro Samuel and Mr Khemis David Morris by telephone from Kenya. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether each of the visa applicants is an orphan relative of an Australian relative as defined in reg 1.14.

   Are the visa applicants orphan relatives of an Australian relative?

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 reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: cl 837.111. 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, the visa applicants’ sponsor for the visa application is the review applicant, Mr Michael Yata Ladu, and he is the relevant Australian relative.

10. The requirements in reg 1.14 are cumulative meaning if one fails all fail.

11. 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)

12. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

13. The Tribunal has considered the passports issued by the Republic of South Sudan and nationality certificates. Noting that there were no birth certificates provided, the Tribunal asked the review applicant how the ages of the children were assessed. In response he said that the grandmother who cared for them knew when they were born because she wrote the information in her diary. The Tribunal has no evidence that the visa applicants’ dates of birth are otherwise than as stated.

14. Based on the written and oral evidence, the Tribunal is satisfied that Yona Mori was born on 20 July 2005, that Lona Sebila was born on 2 July 2007 and that Benjamin Laku was born on 7 January 2014.

15. Therefore, the Tribunal finds that:

    ·     at the time of application, the first named visa applicant, Yona Mori, was 12 years of age, the second named visa applicant, Lona Sebila, was 10 years of age and the third named visa applicant, Benjamin Laku, was three years of age; and

    ·     at the time of decision, the first named visa applicant, Yona Mori, is 16 years of age, the second named visa applicant, Lona Sebila, is 14 years of age and the third named visa applicant, Benjamin Laku, is seven years of age.

16. The Tribunal is satisfied the visa applicants had not turned 18 years at the time of application and had not turned 18 years at the time of decision.

17. Accordingly, reg 1.14(a)(i) was met by the visa applicants at the time of application and continues to be met by the visa applicants at the time of decision.

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

18. Regulation 1.14(a)(ii) requires that the applicant does not have a spouse or de facto partner. At hearing, the review applicant confirmed, and the Tribunal accepts, that none of the visa applicants have a spouse or de facto partner because they are too young. Accordingly, reg 1.14(a)(ii) was met by the visa applicants at the time of application and continues to be met by the visa applicants at the time of decision.

    Relative – reg 1.14(a)(iii)

19. 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.

20. As noted, relative is defined in reg 1.03 and includes a grandparent.

21. The review applicant is an Australian citizen. In the Form 40CH Sponsorship for a child to migrate to Australia forms submitted to the Department, the review applicant indicated that the visa applicants are his grandchildren and their mother, Monday Michael Yatta (Monday), is dead.

22. The review applicant told the Tribunal that the visa applicants are his deceased daughter’s children. In response to the Tribunal asking whether Monday was ever known by any other name, the review applicant said she had not been known by another name at any time.

23. The Tribunal put information to the review applicant using the s 359AA procedure. The information was information given by him to the Department during an interview on 29 September 2004 in relation to his application for a humanitarian visa (Subclass 202). He said he had five children and provided the following names and ages:

    Mary Michael             (F)      Age 24

    Sandy Michael           (F)      Age 22

    Hitler Michael             (M)      Age 19

    Samuel Michael         (M)      Age 17

    Edward Michael          (M)      Age 14

24. The information he provided at interview indicates that his eldest child, Mary Michael, was born in 1980, and his only other daughter, Sandy Michael, was born in 1982.

25. In response to the Tribunal asking the reason he did not include Monday when providing the names of his children at the interview, the review applicant said Monday was his third child and she was born in 1982. This is not consistent with the information he provided on 29 September 2004.

26. Once again, utilising the s 359AA procedure, the Tribunal put to the review applicant that a Refugee and special humanitarian proposal form had been completed by his cousin and provided to the Department on 24 April 2005. The form included dependent family members of the review applicant and listed two daughters, Mary Michael Yata, date of birth 1 January 1980, and Sunday Michael, date of birth 1 January 1982. In response to the Tribunal asking the reason the names of his two daughters in the form were the same as the names provided in the interview and did not include Monday, the review applicant said he had been confused at the interview and had made an error. He said Monday was in fact Sandy/Sunday. The Tribunal pointed out that the information provided to the Department was that his daughter, Mary Michael Yata, was born in 1980 and the information provided to the Department in support of the Subclass 101 visas was that Monday was born in 1980 and not 1982. He did not offer any clarification for the providing different years of birth for Monday.

27. At this point, the review applicant told the Tribunal that he wanted to leave and discontinue the hearing. At the request of the representative, a short adjournment was granted after which the review applicant returned and indicated he was willing to continue with the hearing.

28. In response to the Tribunal asking the review applicant when Monday had died, he said in 2015 and he was initially insistent despite the Tribunal referring to a death certificate and other written evidence which stated that she died on 20 January 2014. The review applicant ultimately accepted that the written evidence provided showed that Monday died in 2014. His explanation for saying she died in 2015 was that the questions asked during the hearing were making him crazy.

29. In response to the Tribunal asking who cared for the visa applicants after Monday’s death, the review applicant said they were looked after by the grandmother (who he said was his mother‑in‑law). He said she died in 2015 after which the children were cared for by the church. The Tribunal put to the review applicant that when submitting the applications for the Subclass 101 visas, a statement dated 1 November 2016 was provided in which Bishop Charles Alfred William stated that after the grandmother died on 15 February 2016, the visa applicants were left to church members. The review applicant then agreed that the grandmother died in 2016. This information was later contradicted by Bishop Charles Alfred William Lasu who told the Tribunal that Monday and the grandmother both died in 2014.

30. Evidence of money transfers from the review applicant in 2016 to Samuel Ladu Michael, Sarlis Loovuret William, Khamis David Moris and Rose Sunday Miccheal was provided. The review applicant told the Tribunal that he sends money to South Sudan for the care of the children every month. He said Samuel Ladu Michael is his son, Sarlis Loovuret William is a pastor, Khamis David Moris is his nephew and Rose Sunday Miccheal is his daughter. The Tribunal put to the review applicant that his earlier oral evidence had been that when he provided the name Sandy/Sunday Michael to the Department he had been confused and that daughter was in fact Monday. The Tribunal asked the review applicant to explain how he was sending money to a daughter he claimed had died in 2014. At this point, the review applicant again expressed a desire to leave and said the hearing was affecting his blood pressure.

31. The review applicant told the Tribunal that his daughter Rose Sunday Miccheal lives in South Sudan and has her own home.

32. At the conclusion of the hearing, the Tribunal asked the review applicant to provide the names and years of birth of his five children. He provided the following details for three children only:

    Monday 1982

    Hitler 1984

    Samuel 1987

33. The Tribunal advised the review applicant and his representative that they may wish to obtain a copy of the Department’s interview notes in relation to his application for a humanitarian visa. The Tribunal also allowed additional time following the hearing (14 days) to enable the review applicant to provide submissions addressing the inconsistency in the information provided during the interview and to the Department and the Tribunal in relation to the applications for the visas the subject of this review. No submissions were received within the 14 days or by the date of this decision.

34. Due to there being inadequate evidence to support the claimed relative relationship, DNA testing to establish the review applicant’s relationship to the visa applicants was offered in a letter dated 27 October 2021. The review applicant was asked to indicate whether or not he intended to provide DNA evidence by completing and returning an attached form by 17 November 2021.

35. On 29 October 2021 the representative advised that the review applicant consented to the DNA testing and said he was “gathering money to assure he pays prior to the 17 November 2021 deadline”. The attached form was not provided by 17 November 2021 and on 18 November 2021 the Tribunal registry contacted the representative. The following case note recorded the contact details:

    Outbound call to REP. Chasing up whether applicant wants to proceed with DNA testing as deadline has passed. REP said she has been trying to get in contact with applicant but has been unsuccessfully. Applicant last told REP he had managed to get some of the money and had further evidence to submit. REP will email Tribunal by end of day updating on situation.

36. On 18 November 2021 the representative advised the Tribunal by email that she was unable to reach the applicant and that on calling him she received an automated message stating that the phone is either switched off or not in a mobile service area. The representative requested one additional week to provide the DNA receipt. In response the Tribunal advised the representative that an extension of time was granted and that the completed DNA consent and payment form must be provided by 26 November 2021. The form was not provided by 26 November 2021.

37. No further request for an extension of time was received and no further information was provided by the representative.

38. On 9 December 2021 the representative advised that she had attempted to contact the review applicant numerous times and that his phone had been switched off. She advised that she had also sent him multiple text messages. She said - I am not sure why this is the case, the only thing I can now do is attend the Applicants home next week in hope of finding him.

39. On 10 December 2021 the Tribunal advised the representative that any submissions and the completed DNA form must be provided by 4.00 pm on Tuesday 14 December 2021, failing which a decision will be made based on the information before the Tribunal.

40. The Tribunal did not receive submissions or the completed DNA form by 4.00 pm on Tuesday 14 December 2021. The Tribunal considers that the review applicant has been afforded ample opportunity to provide these post-hearing and accepted the request of his representative for an extension of time. The Tribunal also allowed an additional time within  which submissions and the completed DNA form could be provided. In spite of these opportunities afforded to the review applicant, he has not provided the completed DNA form and no submissions addressing the inconsistency in the information he provided to the Department and the Tribunal (as noted above) have been received. In these circumstances, and with the benefit of a representative to be able to provide the review applicant with advice about the legislative requirements, the Tribunal considers that it has provided him a reasonable opportunity to provide the required evidence.

41. In the absence of independent verification by DNA test results of the relationship between the visa applicants and the review applicant, the Tribunal closely considered any other evidence that would corroborate the relationship between them. The Tribunal considered the review applicant’s oral testimony at hearing, the information he previously provided to the Department in 2004 and his response to the Tribunal regarding this information.

42. The Tribunal decided that there was no probative evidence of the relationship between the review applicant and the visa applicants’ mother. In making this determination, the Tribunal takes into account the review applicant’s oral evidence at hearing, noting that he did not include Monday when asked for details of his children in the Department interview in 2004; he provided a year of birth for Monday to the Tribunal which was not consistent with the information he provided in the Form 47CH Application for migration to Australia by a child forms he submitted to the Department; he provided incorrect information to the Tribunal regarding the year Monday died; the failure to include Monday in the Refugee and special humanitarian proposal form completed by his cousin in 2005; his lack of satisfactory explanations when asked about the inconsistencies in the evidence and the absence of DNA evidence. The Tribunal also notes that there is no paper trail to prove the relationship between the review applicant and Monday.

43. For the reasons of inadequate and inconsistent evidence, as discussed above, the Tribunal is not satisfied that each of the visa applicants are a relative of an Australian relative. Accordingly, reg 1.14(a)(iii) was not met at the time of application.

44. 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?

45. 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.

46. 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.

47. Given the findings above, cl 117.211 is not met by the visa applicants.

48. 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

49. 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.