Lual (Migration)

[2021] AATA 4531

Lual (Migration) [2021] AATA 4531 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nyawal Dak Lual

VISA APPLICANTS:  Miss Nyadet Banak Dak Lual
Miss Nyachip Banak Lual
Miss Nyamal Banak Lual

CASE NUMBER:  1832848

HOME AFFAIRS REFERENCE(S):          2016046790 OSF2016046790

MEMBER:M. Edgoose

DATE:8 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2021 at 11:23am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of parents – DNA testing report – visa applicants not adopted – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

EC v MIMIA [2004] FCA 978

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 18 October 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 22 April 2016. 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.

4. 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 Regulations because the delegate was not satisfied the visa applicant’s parents were either dead, permanently incapacitated or of unknown whereabouts.

5. The review applicant appeared before the Tribunal on 3 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nuer and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is the visa applicant an orphan relative 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 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 Nyawal Dak Lual, is the relevant claimed Australian relative.

10. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative 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.

    Relative – reg 1.14(a)(iii)

11. 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.

12. According to the delegate’s decisions for each of the visa applicants, the delegate was not satisfied the claimed relative, the review applicant, was related. To confirm this DNA testing was undertaken and on 16 August 2018 the Department received the DNA testing report from Genomic Diagnostics. The report indicated that it is unlikely that the visa applicants and the review applicant are related as aunt and niece as claimed. This was the consistent finding by the delegate for each of the visa applicants. On 17 August 2018 the Department invited the review applicant to make comment on the DNA findings. The review applicant responded to the Department through her representative that she always believed the visa applicant and her siblings were the children of her brother. Despite the DNA results the review applicant stated that she still considers the visa applicant to be related. The delegate considered all of the information and evidence provided however was not satisfied that the visa applicants were a relative of the review applicant and therefore was not satisfied the visa applicants met the requirements of reg 1.14(a)(iii).

13. Prior to the hearing the review applicant through submitted a copy of the Statutory Declaration submitted to the Department dated 21 August 2018. This statutory declaration was in response to the Departments invitation dated 17 August 2018. At paragraph 17 of her statutory declaration the review applicant stated,

    As I was 100% confident the girls were by brother’s children I asked the Department to grant them Orphan relatives visas. Unfortunately now I found out the DANA results that the girls are not my brother’s children, but I am still asking the Department to allow them to come to Australia as in my heart they are my nieces still for me.

14. At hearing the review applicant confirmed that the above statement in her Statutory Declaration was true and correct. The review applicant also confirmed to the Tribunal that she had not made any further statutory declarations in regards to this matter. Given the admission by the review applicant in her statutory declaration and her oral confirmation at hearing the Tribunal is not satisfied that the review applicant is a relative of the visa applicants and therefore reg 1.14(a)(iii) is not met.

15. The Tribunal has given regard to the submissions and attachments made by the review applicant’s representative dated 20 October 2021. The Tribunal notes that the documents attached to this submission were dated 2010, 2015, 2016 and 2018. This included a copy of the DNA testing results.  Although the representative has made some claims regarding the relationship between the review applicant and the visa applicants the Tribunal gives no weight to his claims given the admission made by the review applicant in her Statutory Declaration dated 21 August 2018.

16. The Tribunal did not contact the proposed witness, Miss Nyadet Banak Dak Lual, as the review applicant had confirmed at hearing that she is not a relative of the visa applicants.

17. Accordingly, reg 1.14(a)(iii) was not met at the time of application and does not continue to be met at the time of this decision.

    Has the applicant been adopted by the Australian relative?

18. 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.

19. There is no evidence before the Tribunal that the visa applicant’s have been adopted by the Australian relative. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

20. Given the findings above, cl 117.211 is not met.

21. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. It follows that cl 117.221 is not met.

22. 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

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

    M. Edgoose
    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.