Malag (Migration)

[2023] AATA 2252

Malag (Migration) [2023] AATA 2252 (28 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sarah John Malag

VISA APPLICANTS:  Ms Alier Shan Elias Lual
Ms Asia Shan Elias Lual
Ms Achok Shan Elias Lual

REPRESENTATIVE:  Mr Eugene Goodluck Perazim (MARN: 0742014)

CASE NUMBER:  1906510

HOME AFFAIRS REFERENCE(S):          OSF2016046824 OSF2016046825 OSF2016046826

MEMBER:Brendan Darcy

DATE:28 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that each of the visa applicants meets the following criteria for a Subclass 117 (Orphan Relative) visa:

· cl 117.211 of Schedule 2 to the Regulations; and

· cl 117.221 of Schedule 2 to the Regulations.

Statement made on 28 April 2023 at 11:34am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ of an Australian relative – no parental care – contemporaneous death certificate of the mother – mutually unsupportive evidence regarding the father – bogus ‘death certificate’ – reasonable and compelling reasons for the lack of evidentiary material – inadequate level of migration advice and assistance – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cls 117.211, 117.221

CASES
Nguyen v MIMA (1998) 158 ALR 639

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 22 January 2019 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 16 May 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. For the purposes of this decision, the review applicant is to be referred to as the sponsor; the first named visa applicant is to be referred to as the first applicant; the second named visa applicant as the second applicant; and the third named applicant as the third applicant.

4. 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.

5. 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 definition of Orphan Relative under r 1.14 was not met on the basis it was not accepted that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts

6. The review applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the first visa applicant (via telephone) and a witness, Ms Mary Anyang Chol Fil, the review applicant’s mother.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages.

8. The review applicant and the visa applicants were represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

10. The sponsor was born in the Republic of Sudan (Sudan) on 1 January 1976. The sponsor migrated to Australia on 13 March 2003 while holding a humanitarian visa. Australian citizenship was conferred on the sponsor on 29 March 2006. The sponsor’s personal circumstances included sponsoring her mother (the witness) to Australia; not being in a spousal relationship; and having six children of her own at the time of application.

11. A combined application for Class AH Subclass 117 (Orphan Relative) visa was lodged on 16 May 2016. It was lodged on behalf of the visa applicants by the sponsor at Australia’s diplomatic mission at Nairobi in Kenya.

12. The first applicant was born on 6 September 2004 and the second applicant 16 September 2006. They were both in South Sudan; and the third applicant was born on 10 March 2011 in Egypt. 

13. It is claimed the applicants are ethnically Dinka and that they are citizens of the Republic of South Sudan (South Sudan). South Sudan seceded from Sudan in July 2011 when it was internationally recognised as a sovereign and independent nation.

14. The sponsor claimed that her half-sister is the mother of the visa applicant and to be the maternal aunt of the visa applicants.

15. At the time of application, the first and second applicants were aged 12 and 10 at the time of the visa being lodged. The third applicant was aged 5. It is claimed the visa applicants were residing in Kampala in Uganda, at the time of application.

16. According to the application forms and statutory declaration, the visa applicants’ mother and father were deceased.

17. The following information was also provided by the sponsor to corroborate the claim of deceased parents:

    ·     Extract of death certificate for Akolda Kuat Majok issued on 16 June 2011 by Health Office in Cairo, Egypt;[1]

    ·     A photograph claiming to be Akolda's coffin in hearse with mourning members around the deceased. The child with the pink is first visa applicant, while the partly obscured child is the second applicant (the third applicant was a small baby at the time of the funeral); and

    ·     A death certificate for Shan Lual issued on 10 October 2012 by Nyala Hospital, Darfur.[2]  

    [1] Folio 36 in OSF2016046824

    [2] Folio 35 in OSF2016046824

18. A statutory declaration (dated 12 September 2018) signed by the sponsor stated, in summary that;

    ·     The sister of the sponsor (the visa applicant’s mother) was sick with cancer for a long time. The sponsor’s mother travelled to Cairo with her sister but she could not stay very long;

    ·     The sponsor’s mother told the sponsor that during the time she was there, Akolda's husband was not there; he would come by, see them all, and go again;

    ·     The sponsor’s sister died on 20 June 2011;

    ·     In 2013, the sponsor and her mother decided to move the children to Uganda;

    ·     The sponsor’s mother returned to Australia in 2015; while the visa applicants lived in Kampala, Uganda with a woman;

    ·     The sponsor is not sure about what happened to the visa applicants’ father;

    ·     The sponsor thinks the father returned to South Sudan. She asked people for news about him and the sponsor heard reports that he was still the same, getting drunk all the time. Someone told the sponsor that they thought he was dead but the sponsor does not know what is true;

    ·     After the sponsor heard that the visa applicant’s father was dead, the sponsor stopped asking people about his whereabouts;

    ·     The sponsor’s English is not very good, and she did not why the application said that her sister’s husband died in Darfur; and

    ·     Her sister’s husband cannot be found, and he is not taking care of his children. It has been at least six years since the sponsor heard anything about him. She did not have a death certificate for him, or any way of getting a death certificate.

19. On 22 January 2019, a delegate acting on behalf of the Minister refused the visa applicants Orphan Relative visas in separate refusal decisions.  

20. On 9 March 2019, the sponsor applied to have the delegate’s refusal decision reviewed by the Tribunal. Attached to the application for review was a copy of the notification of the decision and the decision record.

21. On 22 April 2023, the Tribunal received a legal submission prepared by the parties’ representative, and financial records to demonstrate financial support in the form of money transfers being forwarded by the review applicant to the visa applicants over a substantial period of time.

22. As mentioned above, the review applicant attended a hearing on 26 April 2023. During the hearing, a number of photos of the visa applicants from 2011 and 2016 were submitted. No further submissions were required at the end of the hearing. 

23. There are no non-disclosure certificates on the visa applicants’ respective departmental files.

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

24. 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.

25. ‘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. 

26. In the present case, the review applicant, Ms Sarah John Malag, is the aunt of the visa applicants and is the relevant Australian relative.

27. For the reasons below, the visa applicants were, and are, orphan relatives of an Australian relative at the time of application, and at the time of decision.

    Age – reg 1.14(a)(i)

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

29. The Tribunal notes the visa applicants were all minors at the time of application.

30. However, at the time of making this decision, the first applicant reached the age of majority – 18 years of age in September 2022; while the other visa applicants remain minors.

31. Accordingly, reg 1.14(a)(i) was met at the time of application in relation to each of the visa applicants.

32. The first applicant meets the age requirement at the time of decision only because the first applicant has turned 18 pursuant to part (b) of clause 117.221; while the other applicants continue to meet the same requirement pursuant to part (a) of clause 117.221.

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

33. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The written and oral evidence is that visa applicants have never married or engaged to be married or lived in a de facto spousal relationship, right up to the time of making this decision.

34. With no evidence to the contrary, reg 1.14(a)(ii) accordingly was met at the time of application in relation to each of the visa applicants.

35. The first applicant meets the marital status requirement at the time of decision only because the first applicant has turned 18 pursuant to part (b) of clause 117.221; while the other applicants continue to meet the same requirement pursuant to part (a) of clause 117.221

    Relative – reg 1.14(a)(iii)

36. 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.

37. There is no contention that the sponsor was not an Australian citizen or that she is not a usually resident in Australia at the time application or at the time of decision.

38. It is noted the delegate accepted the sponsor is the maternal aunt of the visa applicants’ mother and accepted the sponsor is the aunt of the visa applicants. The Tribunal does not have any information to the contrary.

39. There are substantial reasons to accept the visa applicants are relatives of the sponsor within the meaning of regulation 1.03 at the time of application and at the time of decision.

40. Accordingly, reg 1.14(a)(iii) was met at the time of application in relation to each of the visa applicants.

41. The first applicant meets the relative requirement at the time of decision only because the first applicant has turned 18 pursuant to part (b) of clause 117.221; while the other applicants continue to meet the same requirement pursuant to part (a) of clause 117.221

    No parental care – reg 1.14(b)

42. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

43. The parties have claimed that both the visa applicants cannot be cared for by either of their parents: the mother, Akolda Kuat Majok, and the father, Shan Lual.

44. Specifically in relation to the visa applicant’s mother, it is claimed that she died on 25 June 2011 from cancer. A contemporaneous death certificate, with a certified translation into English from Arabic, pertaining to the mother was submitted to the Department at the time of application. Issued by the relevant authority in Egypt, the death certified indicates the deceased was Sudanese by nationality and Christian by religion. While the submitted document states the mother died in hospital in Cairo, the cause of death was not mentioned. The oral and written evidence is the mother of the visa applicants died of a cancerous disease.

45. With no compelling evidence to the contrary, the Tribunal accepts that, at the time of application, the mother of the visa applicants cannot provide care as she was deceased for the purposes of r.1.14(b).

46. However, the documentary, written and oral evidence presented to the Tribunal as whether the father of the visa applicant was not able to care for visa applicants, had been mutually unsupportive and confusingly tortious.

47. Two key documents were provided to the Department as evidence that the father was either deceased or that his whereabouts were unknown.

48. The first was a copy of the father’s death certificate issued by the Federal Ministry of Health in the Republic of South Sudan. It indicates the father’s date of birth, his religion and that his death occurred at a hospital in Nyala (or Nyalla) and the cause of death was diarrhoea. As discussed in the hearing, Nyala, is the state capital of Darfur province in Sudan, not South Sudan.

49. The second document is the set of written claims by the sponsor in a statutory declaration dated 18 September 2018. The key paragraphs state:

    20. I am not really sure about what happened to the children’s father. I think he went back to South Sudan. I have asked people for news about him. I heard reports that he was still the same, getting drunk all the time. Someone told me that they thought he was dead. I don’t know what is true. It is hard to get any information from Darfur. After I heard that he was dead, I stopped asking people about him. I haven’t heard anything about him anymore.

    21. My English is not very good. I do not know why the applicant said that my sister’s husband died in Darfur. I think that I may have misunderstood my lawyer or she did not understand what I was saying.

    22. I know that my sister’s husband, SHAN LUAL, cannot be found and that he is not taking care of his children. It has been at least 6 years since I heard anything about him. I do not have a death certificate for him. I do not have any way of getting a death certificate. I was able to get a death certificate for my sister because she died in Egypt.

    23. I have heard that the town that my sister’s husband came from has been destroyed. All the people were killed. The homes have been destroyed. It is impossible to get death certificates in that area.

50. In the delegate’s decision record, considerable weight was placed upon the inconsistency of receiving the father’s 2012 death certificate issued in South Sudan, on the one hand, and a detailed statement that the father’s whereabouts were unknown on the other. It was the basis for this inconsistency that the delegate refused the visa as it was concluded the father of the visa applicants can provide care for the visa applicants, and that they were not orphan relatives.

51. The Tribunal concurs that both these documents are not mutually supportive. It makes a further finding that the death certificate was a bogus document. A bogus document is one that a decision maker reasonably suspects purports to have been, but was not, issued in respect of the person; or is counterfeit or has been altered by a person who does not have authority to do so; or was obtained because of a false or misleading statement, whether or not made knowingly, as outlined under s (5)(1) of the Act. The document is question is bogus, not least because it is a certificate issued by the authorities in the independent nation of South Sudan for a death that occurred in Darfur in Sudan. As no South Sudanese authorities have the jurisdiction or authority for those who have died outside of its jurisdiction, it is not unreasonable to find that this specific death certificate was not a reliable or genuine official record.   

52. During the scheduled hearing, the Tribunal expressed its concerns that such a document was ever lodged given the parties used a registered migration agent at the time, and then sought an explanation as to how it was lodged. The sponsor and the witness provided an explanation that they obtained it because the agent explained that it would be required. As they only proficiently speak the Dinka language, and they cannot not read or understand the English language, they did not check the document.

53. The Tribunal has considered whether this bogus ‘death certificate’ was knowingly and wilfully presented, produced or provided to the Department, or caused this document to be given, presented produced or provided. It is critical to consider this as the fraudulent nature of the document has invited overall credibility concerns about the death, the unknown whereabouts or permanent incapacity of the visa applicants’ father for the purpose of r.1.14(b).

54. The September 2018 statutory declaration indicates the sponsor acknowledged the death certificate and the claim that he had died in Darfur, were not genuine. At the hearing, the sponsor was adamant that she received information about his death and that he was buried in Darfur prior to the application being lodged and that she did not take any further action to locate him. Her statement also indicates this, but it also specified, albeit ambivalently, that his whereabouts were unknown, as she thinks he went back to South Sudan, while his children were in Egypt or Uganda. No clear timelines of events were provided.

55. The Tribunal sought a definite response from the sponsor as to whether she is claiming the father of the visa applicant is deceased or his whereabouts were unknown. The Tribunal was not satisfied with the clarity of the response, and it provided a short adjournment for the sponsor to discuss this critical issue with her representative. When she returned, the sponsor said that the father abandoned his family and his whereabouts became unknown when the mother of the child was pregnant with the youngest child in late 2010 or early 2011 and, she indirectly received information that her sister’s husband died in Darfur prior to the lodgement of the visa application. The witness – the sponsor’s mother – also claimed, at the hearing, that she had directly received information that he was deceased.

56. The Tribunal asked whether there are any reasons, even after this visa application had been refused, that no third-party statements to have witness the claimed death, funeral or burial no later obtained official documents, or hospital documents, or photographic or videographic evidence of a funeral or burial site, had been lodged. The sponsor was not able to adequately respond other than to imply that Darfur is technologically backwards and it lacked administrative sophistication in keeping records.

1. The 2016 DFAT report on Sudan indicates that Sudan’s Department of Vital Statistics is responsible for the registration of all deaths. While the registration of deaths is compulsory, it is unlikely all deaths are registered. In cases where a death has not been registered, DFAT understands that individuals may be able to apply to register the death at a later date and obtain appropriate documentation confirming this. This indicates that official records are generally obtainable from Sudan. Nevertheless, on this occasion, the Tribunal accepts that none of the parties were well placed to obtain an official document in Darfur. According to the same DFAT report armed conflict between the Government and armed opposition in Darfur over a long period of time means the security situation is generally unstable and incidents of violence occur between competing Arab tribes, exacerbated by the proliferation of weapons in Darfur.

2. Similarly, the Tribunal has considered whether incorrect information was knowingly and willingly provided through the sponsor’s statutory declaration dated 18 September 2018. The sponsor explained that her representative did not fully understand what she meant, and that no interpreter in the English and Dinka languages was used. In this way, the statement rightly conveys the sponsor abandoning the bogus document but is indistinct as to whether, at the time of application, the applicants father was deceased or that his whereabouts were unknown.

3. The lack of due diligence by the sponsor or her inability to read the documents in English does not diminish her responsibilities in having a bogus document being submitted. Neither does it diminish her responsibilities in ensuring her written claims from September 2018 reflected concisely what she meant to convey and have reflected in writing.

4. There are several unsatisfactory aspects to be found in this application for refused Orphan Relative visas under review.

5. However, it is the duty of the Tribunal not to fixate on inconsistencies or the lack of supportive material at the expense of other evidence or a lack of evidentiary material when there are reasonable and compelling reasons for their absence.

6. On this occasion, the Tribunal finds that the representative failed to provide the sponsor and other parties an adequate level of migration advice and assistance, which fell short of the professional standards of an Australian legal practitioner. This is especially the case when considering the parties have limited English language capacity and educational attainment in general. In allowing the death certificate to be submitted, and in not using an interpreter in composing the 2018 statutory declaration, she directly contributed to the refusal of the visas.  

7. On balance, the Tribunal accepts the sponsor’s adamant evidence at the hearing that the father of the visa applicants died in Darfur and was dead at the time of application, and that it was these claims that she wanted to clearly convey to the decision makers when the application was lodged. In this regard, it has placed considerable weight on the sponsor as credible as she genuinely attempted to set the record straight in her September 2018 statutory declaration. The Tribunal accepts there are considerable difficulties in obtaining corroborative evidence of a death in Darfur, not least because of the poor security situation in that part of Sudan, which been long standing. The Tribunal finds that the sponsor has not set about to deliberately, knowingly, or wilfully to deceive decision-makers about the death of the visa applicants’ father by providing a bogus document and incorrect information. The Tribunal finds it was credibly and plausibly explained to it, under robust questioning, that the father had been often inebriated, frequently absent and regularly negligent towards his wife and children prior his complete abandonment of his family in late 2010 or early 2011, as claimed, and that his whereabouts then became unknown. While there is lack of corroborative evidence about the death of the father in or around 2013 or at anytime leading up to the date of application, the Tribunal has placed considerable weight on the sponsor being an otherwise credible witness and accordingly accepts that the father was deceased at the time of application, as outlined during the scheduled hearing.

8. In summary, the Tribunal finds that the whereabouts of the father of the visa applicant was not unknown or that he was not permanently incapacitated at the time of application, but it does accept that the visa applicants could not be cared for by their father at the time of application as he was dead.

9. As it was earlier accepted that the mother is also deceased at the time of application, it follows from this finding that the visa applicants cannot be cared for by either parent because each of them is dead.

10. Accordingly, reg 1.14(b) was met at the time of application in relation to each of the visa applicants.

11. The first applicant meets the no parental care requirement at the time of decision only because the first applicant has turned 18 pursuant to part (b) of clause 117.221; while the other applicants continue to meet the same requirement pursuant to part (a) of clause 117.221.

    Best interests – reg 1.14(c)

12. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. The visa applicants, it is accepted in this decision, are without parental care from both of their parents since the time of application. They have been residing in a refugee camp in Uganda since their grandmother (the witness) took them to that country in 2012. Financially the sponsor has been remitting money to a designated carer to meet their material needs. Their country of nationality suffers from widespread food insecurity and ongoing armed conflict.

13. Further, the visa applicants are vulnerable young females with no immediate male family members or chaperones to protect them from predatory or exploitative persons or other deprivations.

14. Should they migrate to Australia, they will benefit from a stable political and economic environment, a supportive educational system, and publicly funded resettlement and health services. They will also have the nurturing and material support of both the sponsor and their maternal grandmother.

15. The Tribunal has formed a straightforward or common sense view that there is no compelling reason to believe that the grant of a visa would not be in the visa applicants’ best interests.

16. Accordingly, reg 1.14(c) was met at the time of application in relation to each of the visa applicants.

17. The first applicant meets the best interest requirement at the time of decision only because the first applicant has turned 18 pursuant to part (b) of clause 117.221; while the other applicants continue to meet the same requirement pursuant to part (a) of clause 117.221.

    Conclusion

18. Given the findings above, cl 117.211 is met in relation to each of the visa applicants.

19. The Tribunal finds that each of the visa applicants either continues to satisfy the criterion in cl 117.211 or does not continue to satisfy the criterion in cl 117.211, but only because the visa applicant has turned 18.

20. It follows that cl 117.221 is met in relation to each of the visa applicants

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 each of the visa applicants meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl 117.211 of Schedule 2 to the Regulations; and

    ·cl 117.221 of Schedule 2 to the Regulations.

    Brendan Darcy
    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.