Makuei (Migration)

[2018] AATA 4110

Makuei (Migration) [2018] AATA 4110 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jacob Bec Makuei

VISA APPLICANTS:  Mr John Nhial Akum Makuei
Ms Monica Athok Akum Makuei
Mr Abraham Machiek Akum Makuei
Mr James Malou Akum Makuei

CASE NUMBER:  1602441

DIBP REFERENCE(S):  OSF2013/101388

MEMBER:Moira Brophy

DATE:19 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 19 June 2018 at 3:29pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 Orphan Relative – orphan status – inconclusive DNA testing – identity of applicant’s parents – relationship of applicants – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14 Schedule 2 cls 117.111, 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 21 December 2015 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 applied for the visas on 25 April 2013. 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 (the Regulations). Relevantly to this case, they include cl.117.211 and 117.221. in that the delegate was not satisfied the orphan status required had been established.

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 orphan status required had been established.

5. The review applicant, Mr Jacob Bec Makuei appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Atemthi Dhieu Day and from Mr Ater D Nhial. 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 his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicants are the orphan relatives of the sponsor, Mr Makuei.

   Is the visa applicant an orphan relative of an Australian relative?

9. 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.

10. The primary visa applicants is Monica Athok Akum Makuei (date of birth 5 February 1999). The other visa applicants are Mr John Athok Akum Makuei (date of birth 28 July 2002), Mr Abraham Machiek Akum Makuei (date of birth 8 July 2001) and Mr James Malou Akum Makuei (date of birth 2 May 2003). In the application form it was stated that the father of the applicants Akum Makuel Dongrin is deceased and their mother Atong Marial Agook was also deceased.

11. ‘Orphan relative’ is defined in r.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): r.1.03.  In the present case, the sponsor claims he is the uncle of the applicants and the father of the applicants is his brother. Accordingly he claims he is the relevant Australian relative. The primary decision records that Mr Makuei migrated to Australia in 2004 on a subclass 202 (Refugee Special Humanitarian Program) visa.  The Tribunal noted the father of the visa applicant’s was named as a sibling of the sponsor in his immigration application.

12. The department invited the sponsor to provide DNA evidence. On 20 July 2015 DNA results were provided from Genomic Diagnostics. The results stated that it was highly unlikely that the Jacob and John were related as biological uncle and nephew, that John and Monica were either full siblings or half siblings, that John and Abraham were either full siblings or half siblings, that John and James were related as full siblings or half siblings. It was likely that Monica and Abraham were related as biological full siblings. It was unlikely that Monica and James were full siblings or half siblings, it was unlikely that Abraham and James were full siblings but it was inconclusive as to whether or not they were half siblings.

13. The Tribunal acknowledges that it is common in Sudanese culture for children to be cared for by relevant family members. The Tribunal also acknowledges that, in a country which has been characterised by war and/or social disruption, many families have become separated with the result that children are cared for by extended family members. The Tribunal ackowledges Mr Makuei has provided care by way of concern and sending money for the children. However, the regulations require the Tribunal to be satisfied that the visa applicants are a 'relative' of the review applicant, and that their parents are unable to care for them because they are deceased, of unknown whereabouts, or incapacitated.

14. The threshold issue before the Tribunal is that it is not clear who the visa applicants' parents are. As previously stated Mr Makuei claims the father of the applicants is his brother. The Tribunal noted the father of the visa applicant’s was named as a sibling of the sponsor in his immigration application.While acknowledging the submissions made by Mr makuei that it is culturally possible that children who are not biologically related can be raised as siblings given the results of the DNA testing it is difficult on the available evidence to make a conclusive finding as to who the parents of the applicants are.

15. Without knowing the identity of their parents, it is not possible for the Tribunal to assess whether their parents are deceased, incapacitated or of unknown whereabouts. It is also not possible to establish if Mr Makuei is their uncle. Having considered the DNA results, the oral and written evidence before it, the Tribunal was unable to be satisfied as to the identity of the visa applicants, their relationship to each other or the identity of their parents. According to the DNA results it was found to be statistically unlikely that Mr Makuei was related to the first named applicant John Nhial Akum Makuei.  John Nhial Akum Makuei was found to be not related to the other applicants. Accordingly the Tribunal is not satisfied on the evidence provided the applicants are 'relatives' of Mr Makuei.

16. For the reasons below, the Tribunal finds 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.

17. 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

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

    Moira Brophy
    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.