Madhek (Migration)

[2021] AATA 4535

Madhek (Migration) [2021] AATA 4535 (10 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Cholok Ramdan Madhek

VISA APPLICANTS:  Master Pabek Dungu
Master Khairalseed Dungu
Ms Nyibol Dungu

CASE NUMBER:  1834511

HOME AFFAIRS REFERENCE(S):          2017022794 OSF2017022794

MEMBER:M. Edgoose

DATE:10 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 10 November 2021 at 11:10am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – claimed half-sister of the visa applicants’ mother – such relationship not claimed in previous applications – 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 5 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 25 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 and cl 117.221.

4. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were relatives of the review applicant as claimed.

5. The review applicant appeared before the Tribunal on 10 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.

6. The review applicant was represented in relation to the review by her representative.

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 Cholok Ramdan Madhek, is the claimed relevant 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 delegates decision of the first named visa applicant Master Pabek Dungu, the delegate was not satisfied that his mother, Napisa Madhek and the review applicant, Ms Cholok Ramdan Madhek are half siblings as claimed. For this reason, the delegate was not satisfied the first named visa applicant is a relative of the review applicant as claimed. At hearing the review applicant disputed this claim that she is not a relative of Master Pabek Dungu because she claimed to be the half-sister of the visa applicant’s mother.

13. According to the delegates decision of the second named visa applicant, Master Khairalseed Dungu, the delegate was not satisfied that his mother and the review applicant, Ms Cholok Ramdan Madhek are half siblings as claimed. The delegate also found that when the review applicant was granted her visa, she only declared five brothers and six sisters. The claimed mother of the visa applicant’s, Napisa Madhek, was not declared on that file. For this reason, the delegate was not satisfied the second named visa applicant is a relative of the review applicant as claimed. At hearing the review applicant disputed this that she is not a relative of Master Khairalseed Dungu because she claimed to be the half-sister of the visa applicant’s mother.

14. According to the delegates decision of the third named visa applicant Ms Nyibol Dungu, the delegate was not satisfied that her mother and the review applicant, Ms Cholok Ramdan Madhek are half siblings as claimed. For this reason, the delegate was not satisfied the second named visa applicant is a relative of the review applicant as claimed. At hearing the review applicant disputed this claim that she is not a relative of Ms Nyibol Dungu because she claimed to be the half-sister of the visa applicant’s mother.  

15. The review applicant further reiterated to the Tribunal that she is definitely the half-sister of the visa applicant’s claimed mother. The review applicant claimed at hearing that all of the required documents had been submitted to the Department at time of application and to the Tribunal. However, given the consistent findings by the delegate in each of the visa applicant’s refusal decisions and the limited evidence before the Tribunal the Tribunal is not satisfied that the review applicant is a relative of the visa applicants as claimed.   

16. On 5 November 2021 prior to the hearing the review applicant through her representative submitted to the Tribunal a number of documents including a Statutory Declaration. The Tribunal has given regard to the comments made by the review applicant regarding the identity of the claimed mother of the visa applicants. In paragraph 9 of the statutory the review applicant claims that when she completed her application to come to Australia the documents were completed by a community leader and only mentioned her parents, brothers and sisters and all her siblings from her mothers side only and not the claimed mother of the visa applicants who is from the fathers side. The Tribunal informed the review applicant at hearing that it has genuine concerns about her making this claim now given that her application to come to Australia was completed over 20 years ago. Only now at the time of this matter the review applicant has raised the issue of being the claimed half-sibling of the visa applicant’s children. Although the review applicant claims in paragraph 10 and, 11 and 12 of her statutory declaration that Napisa is definitely her stepsister there is limited evidence before the Tribunal to support this claim. For these reasons the Tribunal places little weight on the review applicant’s statements.  

17. At hearing the review applicant’s representative requested that paragraph 17 of the Statutory Declaration be deleted. The Tribunal informed the representative that the review applicant had signed and dated the Statutory Declaration in accordance with the Statutory Declarations Act 1959 on 5 November 2021. The Tribunal notes that the representative only requested paragraph 17 be deleted and did not provided an amendment.

18. In this matter the Tribunal has considered all of the information on the Department files and the Tribunal file in reaching its decision.

19. 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 decision.

    Has the applicant been adopted by the Australian relative?

20. 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.

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

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

23. 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.

24. 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

25. 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.