Mabeny (Migration)

[2018] AATA 5025

Mabeny (Migration) [2018] AATA 5025 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nyandeng Atem Mabeny

VISA APPLICANTS:  Ms Adit Atem Mabany Atem
Ms Amal Maguk Reeth Deng
Mr Deng Maguak Reeth Deng

CASE NUMBER:  1730229

DIBP REFERENCE(S):  OSF2015/075537

MEMBER:Kira Raif

DATE:1 November 2018

PLACE OF DECISION:  Sydney

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:

·Reg 1.14(b) and (c) for the purpose of cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations

Statement made on 01 November 2018 at 3:53pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) – orphan relatives of sponsor –  parents dead or permanently incapacitated – sponsor financially supports applicants – remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.14 Schedule 2 cls 117.211, 117.221

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 Immigration on 5 October 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of South Sudan. They were born in 2004, 2008 and 2005 respectively. The visa applicants applied for the visas on 24 September 2015. The delegate refused to grant the visas because visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 1 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Marol, the review applicant’s former spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the applications were 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. 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.

6. ‘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?

7. The review applicant provided to the Tribunal copies of the primary decision records, which include the following information.

8. Adit stated on the application form that her mother is Adau Deng and that the mother’s whereabouts are unknown. She stated that her father is Atem Mabeny and that he was dead. The applicant claimed to be the sister of the sponsor. Amal and Deng stated on the application form that their mother was Ayen Mabeni and that her whereabouts were unknown. They stated that their father was Maguk Reeth and that he was dead. They claim to be full siblings of each other and niece and nephew of the sponsor.

9. The visa applicants’ agent provided a statement indicating that the Red Cross has been approached to locate the missing parents but the parents have not been located and are presumed dead.

10. The sponsor subsequently provided a declaration stating that her father was missing but was recently found. Sponsor claimed that her father was permanently incapacitated as he was blind and due to his old age and it is stated that the father is unable to care for her. The sponsor states that Adit’s mother passed away in 2013. With respect to Amal and Deng, the sponsor stated that their parents were deceased. It is stated that the mother passed away during the outbreak of war in 2013 and their father passed away when he was struck by lightning in 2011.

11. The delegate noted that the claims concerning the visa applicants’ parents were contradictory. The initial claim was that the parents were missing and of unknown whereabouts or dead. The subsequent claim in relation to Adit’s father is that he was found but incapacitated. For the other children, the initial claim was that their mother was missing but they subsequently claimed she had died in 2013, two years before the applications were made. The delegate also noted there was little evidence to support these claims. As a result, the delegate was not satisfied that the parents were deceased, incapacitated or of unknown whereabouts and the delegate was not satisfied visa applicants were orphan relatives of the sponsor.  

12. The review applicant provided a written submission to the Tribunal on 31 July 2018. The review applicant states that Adit is her half-sister, they have the same father but different mothers. The review applicant states that their father has been living in a refugee camp in Sudan and is completely blind due to an untreated eye infection and cannot care for the child. Adit’s mother is deceased and the review applicant provided to the Tribunal a copy of the death certificate.

13. The review applicant states that Amal and Deng are her niece and nephew and both of their parents are deceased. The review applicant provided copies of the parents’ death certificates. The review applicant states that she rents a house in Kenya and is supporting the children financially and they have no near relatives to take care of them.

14. In oral evidence, the review applicant said that they could not provide documents when the application was made and that is why there was contradictory information about the visa applicants’ parents. She also said that her English was not sufficient to communicate with the lawyer who helped her with the application.

15. The Tribunal made arrangements to verify the death certificates for the visa applicants’ parents. On 11 September 2018 the Tribunal received advice from the overseas post that the death certificates for Ada Deng, Ayen Atem Mabeny and Maguakk Reeth Deng were genuine. On the basis of this advice, the Tribunal finds that the parents of Amal and Deng have passed away. The Tribunal further finds that Adit’s mother has passed away.

16. With respect to Adit’s father, the review applicant told the Tribunal that he was initially lost but then they found him. She said that he is blind and cannot look after himself or the children. He stays at home and relies on relatives to help him. The review applicant provided to the Tribunal an admission form from Bor Hospital which states that Atem Mabeny Atem has an eye problem and became blind three years ago. There is nothing to contradict that evidence. The Tribunal accepts, on balance, that Adit’s father is permanently incapacitated. 

17. The Tribunal finds that the visa applicants cannot be cared for by their parents because each of them is dead or permanently incapacitated. The visa applicants meet r. 1.14(b).

18. The review applicant told the Tribunal that she has been supporting the children financially and pays for their rent, schooling and other expenses. She said that if the children come to Australia, they will live with her and she would rent a bigger place. She states that she has the finances to support the children. The Tribunal is satisfied the sponsor has the financial capacity and the willingness to care for the children. There is no evidence to suggest that the sponsor would be in any way incapable of caring for the children. Both the review applicant and her former partner told the Tribunal they have obtained the Working with Children clearance certificates for their work. The Tribunal finds that here is no compelling reason to believe that the grant of the visas would not be in the best interests of the visa applicants. The visa applicants meet r. 1.14(c).

19. The visa applicants claim to have been born in 2004, 2008 and 2005 respectively. The Tribunal finds that they were under the age of 18 when the applications were made. Given their ages, the Tribunal is satisfied they do not have spouses or de facto partners. They claim to be relatives of the sponsor but that assessment was not done by the delegate. The Tribunal has formed the view that it may be preferable for the primary decision-maker to assess the visa applicants’ relationship with the sponsor as this may require document verification or DNA testing. The Tribunal makes no finding in relation to r.1.14(a).

20. The Tribunal finds that the visa applicants met r. 1.14(b) and (c) and continue to meet these provisions at the time of this decision. The Tribunal makes no assessment in relation to r. 1.14(a).

    Conclusion

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

    DECISION

22. 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:

    ·Reg 1.14(b) and (c) for the purpose of cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member