Manash (Migration)

[2018] AATA 180

Manash (Migration) [2018] AATA 180 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Phillip Juma Manash

VISA APPLICANTS:  Ms Selina Ajonya Paul
Mr Isaac Malish Paul

CASE NUMBER:  1606592

DIBP REFERENCE(S):  OSF2014/044215

MEMBER:Kate Millar

DATE:1 February 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that visa applicants meet 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 01 February 2018 at 11:12am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Visa applicant’s mother is permanently incapacitated – DNA testing carried out – Half siblings

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, 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. Mr Manash is a citizen of Australia.  He wants his sister Selina Paul and brother Isaac Paul to live with him in Australia.  Selina and Isaac are citizens of South Sudan and are currently in Uganda.  Selina and Isaac applied for Child (Migrant) (Class AH) visas on 26 May 2014.

2. At the time Selina and Isaac applied for the visas, Class AH contained three subclasses and of these, Selina and Isaac have sought Subclass 117 (Orphan Relative ) visas on the basis they were the orphan relatives of Mr Manash. In their applications, Selina and Isaac state their father died on 20 May 2003 in a refugee camp in Uganda, and that their mother Mary Ghira is unable to care for them.

3. A delegate of the Minister for Immigration and Border Protection refused their applications under s.65 of the Migration Act 1958 (the Act).  The delegate was not satisfied Selina and Isaac met the definition of “orphan relative” in the Regulations, in particular the requirement that their mother was unable to care for them because she was permanently incapacitated.

4. Since then Mr Manash states Mary Ghira is missing after the family fled South Sudan to Uganda in May 2016.  The hearing of this matter was delayed for a period to enable Mr Manash to locate Selina and Isaac, as he said he was unable to contact them. It was also delayed to allow Mr Manash to provide DNA tests to establish the relationship between him, Selina and Isaac.   

5. Mr Manash appeared before the Tribunal on 30 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Selina.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bari and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria include at cl.117.211 that the applicant is the orphan relative of an Australian relative. At cl.117.211 there is a requirement that the applicant continues to meet cl.117.211, or no longer meets this criterion because the person has turned 18 years of age.

8. The issue in the present case is whether at the time of the visa application and the time of this decision, Selina and Isaac are orphan relatives of Mr Manash as defined in the Regulations.

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

9. As it applies to Selina and Isaac, cl.117.211 requires that at the time of application they are orphan relatives of Mr Manash (cl.117.211(a)).  They 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. ‘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’ includes a brother or sister: r.1.03.  Mr Manash is an Australian citizen.

11. Mr Manash’s parents are Mary Ghira and Samuel Sadik.  Mr Manash said he was born in Uganda as his parents fled there from Sudan in 1990.  His father died in 1992, after which he went to live with his uncles, and migrated to Australia with one of his uncles.  His mother remained in the refugee camp in Uganda, and re-partnered with Paul Juda. Selina and Isaac are the children of his mother and Paul Juda.

12. Mr Manash states Mr Juda died in 2003 after being kidnapped by rebels in the camp in Uganda.  His mother was returned by UNHCR to South Sudan with Selina and Isaac in 2007 and they resettled in Yei.  They found living difficult due to his mother’s health and as there was no further support from UNHCR, and he has supported them since this time. 

13. In 2015, the situation deteriorated in South Sudan, and in 2016 he said Yei was attacked by government troops.  The family fled, but were separated. Selina and Isaac walked to Uganda and re-entered a refugee camp, and remain in Uganda.   Mr Manash said Mary is now missing.

    Age – r.1.14(a)(i)

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

15. Selina’s date of birth is stated in the application to be 16 October 1999 and Isaac’s date of birth is stated to be 25 August 2002.  A child health record from Uganda was provided for Isaac with this date of birth. As Isaac was 11 years old at the time of the application.

16. A child health card was provide with Selina’s stated date of birth of 16 October 1999, however the child’s name on the registration card is difficult to discern and appears to be  Ajonye Lovena Edisa, with the father’s name being Lovena Adisa.  Celina is also referred to in the documents as Selina Ajonye, and has the same date of birth across other documents such as her more recent refugee card and her school reports.     Given the consistent information, I am satisfied she had not turned 18 at the time of the application. 

17. Accordingly r.1.14(a)(i) was met at the time of application. Isaac continues to meet the age requirement at the date of this decision, however Selina has now turned 18 years of age.

    Spouse or de facto partner – r.1.14(a)(ii)

18. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is nothing before me to indicate either has a spouse or defacto partner, and Mr Manash gave evidence Selina does not have a spouse or defacto partner.  The Tribunal was unable to ask Selina this question as the telephone line to Uganda dropped out and could not be re-established.  However, given there is no information before me that she has spouse or defacto partner, I accept this is the case and find this requirement is met at the time of application and the time of this decision.  

    Relative – r.1.14(a)(iii)

19. 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 r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

20. DNA testing reports moderately strong support for the proposition that Selina and Isaac are the half biological siblings of Mr Manash.  The DNA testing also report extremely strong support for the proposition that Selina and Isaac are full biological siblings. 

21. Mr Manash is an Australian citizen, and DNA tests support that he is the half-brother of Selina and Isaac.

22. Accordingly, r.1.14(a)(iii) is met..

    No parental care – r.1.14(b)

23. 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.

24. In this case, Selina, Isaac and Mr Manash state that Selina and Isaac’s father died in 2003 in Uganda.  There is nothing before me to suggest he is alive, and I find he is deceased.

25. Mr Manash has provided letter from the Red Cross to show he is attempting to trace Mary.  He states that from 2015 war started again in South Sudan and there was constant military movement in Yei.  He states that in 2016 Yei was attacked by government troops and the family fled at night with neighbours.  Selina and Isaac walked to Uganda and called him.  He told them to register at the refugee camp and has since arranged for them to live at a boarding school in Uganda.  Selina said that she last saw her mother in Yei in Sudan in 2016 before they went to Uganda.

26. Mr Manash and Selina’s account of Yei being attacked is consistent with news reports at the time, [1] and I accept the family fled South Sudan. I accept that Mary has since been missing and find that at the time of this decision she is of unknown whereabouts.

27. The more difficult issue in this case is whether Selina and Isaac could not be cared for by Mary at the time of the application because she was permanently incapacitated.

28. Selina and Isaac provided a letter dated 13 June 2014 from Dr Samuel Kennedy, the Medical Director of Yei Civil Hospital.  This letter states Mary first presented on 4 January 2013 complaining of fatigue, loss of weight and was diagnosed with liver cirrhosis on this date.  It states she has a history of asthma, appendicitis, depression and constant headaches of unknown cause. 

29. At the time of the application Selina and Isaac were living with Mary.  Mr Manash had visited them in South Sudan in early 2013 for approximately one month. He says at this time Mary was unable to work or to perform household activities such as cooking and cleaning because of pain in her joints.  He says she was not making wise decision because of her depression.

30. Mr Manash said that Selina had to purchase food, cook and clean, but that Mary could occasionally help with washing clothes and dishes. Mr Manash said that Mary was also unable to fetch the water need by the household.  He said he sent her money, but she needed assistance from others to be able to collect the money.  On being asked what care Selina and Isaac required that Mary was not able to give, he said the opportunity to be children, as they had to do tasks a mother would normally do.

31. On being asked further about Mary’s ability to make decisions, Mr Manash said she could be angry and confused and would spend her time talking about “why did this happen to me”. 

32. Mr Manash said he arranged school for the children, and they had to get themselves to school.  

33. Selina gave consistent evidence about Mary’s ability to do household tasks, in particular that she could not shop for food or clean the house and that Mary spent most of her time just sitting. 

34. Mary’s ability to provide care, and the type of care Selina and Isaac required at the time of the application, should be considered in the context of the country and culture in which they were living. The UN Security Council May 2014 forecast[2] states that at this time South Sudan remained mired in civil war the killing of many civilians is reported.  It states that food insecurity had reached crisis proportions in South Sudan. 

35. In these circumstances, the care that Selina and Isaac required in terms of accessing food and remaining safe required from their mother an ability to access food and water and to take action is their safety was threatened.  I am satisfied that she was unable to perform these tasks.

36. In the context of the food insecurity and the risk to safety that existed in South Sudan at the time of the application, I am satisfied Mary was incapacitated to provide care for the children.

37. The letter from the hospital indicates Mary has permanent conditions such as cirrhosis of the liver, and I find her incapacity was a permanent incapacity at the date of the application. 

38. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

39. 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. There is nothing to indicate the grant of the visa would not be in Selina and Isaac’s best interests. 

40. Given the findings above, cl.117.211 is met.

41. The Tribunal finds that the Isaac continues to satisfy the criterion in cl.117.211 and Selina does not continue to satisfy the criterion in cl.117.211, but only because the she has turned 18. It follows that cl.117.221 is met.

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

    DECISION

43. 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:

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Kate Millar
    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.

    
    

South Sudan Forces killed 114 civilians around Yei in six months: UN (19 May 2017) Accessed 30 January 2018

[2] Accessed 30 January 2018