Manok (Migration)

[2021] AATA 4836

Manok (Migration) [2021] AATA 4836 (10 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Fanda Bill Mafower Manok
Mr Ricky Nicola Anania Liki
Miss Janet Nicola Anania Mogga Liki
Miss Randa Nicola Liki
Mr Kevin Nicola Anania Mogga Liki
Miss Mira Niniayak Nicola Anania Mogga Liki

CASE NUMBER:  1903897

HOME AFFAIRS REFERENCE(S):          CLF2018/364445

MEMBER:Mila Foster

DATE:10 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 10 December 2021 at 4:56pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – sibling relationship between applicant and sponsor and death of father – documentary evidence obtained very quickly after visa refused – reliability of documents – country information – members of family unit – no power to consider compassionate grounds – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, 1.15(1)(c), (2), Schedule 2, cls 835.212, 835.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 30 January 2019 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 4 December 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicants are seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The first named applicant applied for the Subclass 835 visa on the basis that she was the remaining relative of her sister, Asunta Bill Mapour Manok, who sponsored her for the visa. The other applicants applied for the visa on the basis that they were the first named applicant’s children and were members of her family unit.

3. Relevantly to this matter, the primary criteria for the Subclass 835 visa include cl 835.212 which requires at least one applicant to be a ‘remaining relative’ of an ‘Australian relative’ at the time of application. The secondary criteria include the time of decision criterion in cl 835.321 which requires the applicant to continue to be a member of the family unit of a person, who having satisfied the primary criteria, is the holder of a Subclass 835 visa.

4. The delegate refused to grant the first named applicant the visa on the basis that cl 835.212 was not met because she had a near relative (her father) who was not usually resident in Australia and who was not an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The other applicants were consequently refused visas on the basis that they did not satisfy cl 835.321.

5. On 1 October 2021 the Tribunal wrote to the review applicants by letter addressed to the first named applicant advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 22 October 2021 via video using Microsoft Teams. On 13 October 2021 the first named applicant stated that she agreed to the Tribunal making a decision without appearing before it. On 19 October 2021 she confirmed that she was requesting a decision on the papers without a hearing for all the applicants. The Tribunal is satisfied on the evidence before it that the first named applicant had the authority to act on behalf of all the applicants by virtue of being their mother, the ages of the youngest applicants and the signed authorisation the four oldest children gave on 16 February 2019 when the review application was lodged. This matter has therefore been determined on the evidence available to the Tribunal.

6. The applicants had appointed a registered migration agent, Janette Friar, to assist them with the visa application but did not have a migration agent on review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in this case are whether the first named applicant and the sponsor are sisters and whether the first named applicant’s father was deceased at the time of application.

   Summary of evidence and claims

9. The evidence before the Tribunal includes the Department of Home Affairs (the Department) file relating to the visa application[1] and documents provided in support of the review application. This decision does not record all the evidence before it, however the Tribunal has had regard to all the evidence in making its decision. 

   The visa application

   [1] Department file number CLF2018/364445.

10. According to the visa application, the applicants are all citizens of Norway. The first named applicant is 39 years old and was born in Rombaik in Sudan. She is separated from her husband, Nicola Anania Mogga Liki who is the father of the applicant children. The second named applicant is 22 years old; he was born in Sudan. The third named applicant is 19 years old, she was born in Lebanon. The fourth, fifth and sixth named applicants are 15, 11 and 9 years old respectively and all three were born in Norway. The applicants came to Australia on 26 August 2018 on visitor visas so that the applicant children could see their father who was studying in Australia.[2]  The sponsor was an Australian citizen and usually resident in Australia.

    [2] Mr Friar’s letter to the Department dated 28 November 2018: Department file, f.29.

11. The visa application included the following documents:

    a.A completed ‘Application for migration to Australia by other family members’ (Form 47OF).

    b.A completed ‘Sponsorship for migration to Australia’ form. 

    c.A List of Supporting Documents.

    d.The biodata pages of the applicants’ Norwegian passports.

    e.A ‘Document for travel to Australia’ issued to the sponsor.

    f.The biodata page of the sponsor’s Australian passport.

12. Not all the documents listed on the List of Supporting Documents were provided to the Department. For example, a completed Form 80 relating to the first named applicant, the first named applicant’s birth certificate, and what was referred to as ‘Evidence of Relationship Between the Applicant and Sponsor’ (the Applicant being the first named applicant) were not submitted.

13. Additional supporting evidence was submitted under cover of a letter dated 9 January 2019 from the migration agent which included English translations of the applicant children’s birth certificates and a Norwegian ‘licence to separate’ issued to the first named applicant and Mr Liki on 13 March 2009. The migration agent stated that the first named applicant and the sponsor were born in Sudan and had tried to obtain copies of their birth certificates but due to the turmoil in the country and the length of time since they had left, they requested that DNA testing be undertaken to evidence their relationship.

14. On the Form 47OP the first named applicant declared that her family members consisted of her parents, Mary Nyniak Mangok and Bill Mafower Manok, her sister, and the five applicant children. She indicated that Mary Nyniak Mangok was deceased, and that Bill Mafower Manok was residing in South Sudan and was not an Australian citizen, New Zealand citizen or Australian permanent resident.

    Evidence on review

15. The review application included the following documents:

    a.Undated written statement made by the first named applicant.

    b.An Age Assessment Certificate relating to the first named applicant issued on 14 February 2019 by the National Medical Commission of South Sudan.

    c.An Age Assessment Certificate relating to the sponsor issued on 14 February 2019 by the National Medical Commission of South Sudan.

    d.A Death Certificate relating to Bill Mapour Manok issued on 8 February 2019 by the Ministry of Health of South Sudan stating that he died on 25 February 2014.  

    e.Letter dated 18 February 2019 from Reverend Geoff Bates, the Senior Minister of the LIFE Anglican Church in Quakers Hill (NSW).

    Reliability of documentary evidence from South Sudan

16. For the following reasons the Tribunal has doubts about the reliability of the Age Assessment Certificates and Death Certificate presented on review.

17. Firstly, the second name of the father of the first named applicant and sponsor is spelt differently on the Age Assessment Certificates. On the first named applicant’s certificate, his second name is spelt ‘Mafower’ while on the sponsor’s certificate it is spelt ‘Mapour’.  

18. Secondly, the father’s second name on the Death Certificate is ‘Mapour’ even though the first named applicant stated on the Form 47OP that his second name was ‘Mafower’.

19. Thirdly, the first named applicant’s third name and her father’s second name on her Age Assessment Certificate appears to have been altered – there is the appearance of white-out correction fluid or tape.

20. Fourthly, the sponsor’s Age Assessment Certificate states she was born in Khartoum, in the county of Rumbek Center, in the state of W.Lakes. However, according to information in sources consulted by the Tribunal, Rumbek Centre county is located in the Lakes state of the country of South Sudan.[3]  Khartoum on the other hand is the capital of the country of Sudan[4] and is located within the state of Khartoum.[5] The Tribunal notes that South Sudan gained independence from Sudan on 9 July 2011[6] but the sources indicate that even before South Sudan’s independence Khartoum was not located within the Rumbek Center county or Lakes state.[7]

    [3] Central Intelligence Agency (US), World Factbook, South Sudan - Government – Administrative Divisions, updated 22 November 2021, url; Conflict Sensitivity Resource Facility, South Sudan – Country Profiles HTML Links, (undated) url.

    [4] Central Intelligence Agency (US), World Factbook, Sudan - Government - Capital, updated 22 November 2021, url.

    [5] UK Home Office, ‘Report of fact-finding mission to Khartoum, Sudan’, November 2018, p.470, url; Permanent Committee on Geographical Names (UK), Information paper -  Sudan: administrative divisions and their centres , December 2016, url.

    [6] Central Intelligence Agency (US), World Factbook, South Sudan - Government - Independence, updated 22 November 2021, url.

    [7] OECD, 2011 Report on International Engagement in Fragile States – Republic of South Sudan, 2011, p.18, url; African Development Bank Group, ‘Sudan Country Brief 2010/2011’, ANNEX VI:SUDAN: Administrative Map, October 2011, url.

21. Fifthly, the signatures of the Presiding Officer and Physician who signed the Age Assessment Certificates seem strikingly similar to the Tribunal.

22. Sixthly, information in sources consulted by the Tribunal indicates that South Sudan does not yet have a legal and administrative framework for the registration of vital life events such as births and deaths, and there is no way to obtain a legally valid certificate for such events.[8] The Australian Department of Foreign Affairs and Trade (DFAT) reports that documentation relating to vital life events are often issued on the basis of information provided, the authorities rarely seek to confirm the accuracy of the information provided, supporting documentation is often not required, and hence the capacity of the Government to issue reliable documentation is extremely low.[9] DFAT specifically reports that age assessments can be imprecise and death certificates extremely unreliable.[10] DFAT further reports that there is a high prevalence of fraudulent and fraudulently obtained documentation in South Sudan and that age assessments and death certificates are amongst the ‘high-risk documents’.[11]

    [8] UNICEF, ‘Review of Civil Registration and Vital Statistics Innovations in Eastern and Southern Africa: Digitization, processes, and strategies’, June 2020,  p.51, url; Department of Foreign Affairs and Trade (Australia), DFAT Country Information Report South Sudan, (DFAT Report), 5 October 2016, [5.21], [5.29].

    [9] DFAT Report, [5.30].

    [10] DFAT Report, [5.21], [5.22].

    [11] DFAT Report, [5.29].

    Is the first named applicant a remaining relative of an Australian relative?

23. The first named applicant claims she is the remaining relative of the sponsor, who is her Australian relative.

    Australian relative

24. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the (first named) applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: reg 1.03. ‘Relative’ is also defined in reg 1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents). A ‘close relative’ is a partner, child, parent, brother or sister.

25. In this case it is claimed that the sponsor is the first named applicant’s sister and is an Australian citizen. The Tribunal accepts on the basis of the sponsor’s passport, that she is an Australian citizen.

26. The first named applicant has consistently claimed that the sponsor is her sister and submitted the Age Assessment Certificates as evidence of the relationship. However, the Tribunal is not satisfied that these certificates are reliable for the reasons given above and because the first named applicant did not explain how she obtained the certificates within 15 days of being refused the visa despite having informed the Department just over a month before that she was unable to obtain birth certificates due to turmoil in South Sudan. The Tribunal has thus given the Age Assessment Certificates no weight.

27. The Tribunal notes the similarity in the names of the first named applicant and the sponsor. However, even allowing for the slight variation in the spelling of their third names, the similarity in their names could suggest they are related but not necessarily siblings. In this regard the Tribunal notes information that many Sudanese people are named after past family members such as a grandfather or uncle.[12]

    [12] SBS, Cultural Atlas - South Sudanese Culture – Naming, undated, accessed 9 December 2021, url.

28. The Tribunal notes that Reverend Bates referred to the sponsor as the first named applicant’s sister in his letter. However, it is not evident that his knowledge of that relationship is independent of what the first named applicant and the sponsor may have told him.

29. Nevertheless, even if the Tribunal gives the first named applicant the benefit of the doubt and accepts that the sponsor is her sister, there is the further issue of whether the first named applicant is her remaining relative.

    Remaining relative

30. ‘Remaining relative’ is defined in reg 1.15 of the Regulations, which is set out in the attachment to this decision. No near relatives: reg 1.15(1)(c). Regulation 1.15(1)(c) requires that the applicant have no ‘near relatives’ except those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens. ‘Near relative’ for these purposes is defined in reg 1.15(2) of the Regulations and means a person who is a parent, brother, sister, step parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

31. Based on the information provided in the visa application the first named applicant had a near relative other than the sponsor, namely, her father who was residing in South Sudan. Having been refused the visa for that reason, the first named applicant claimed on review that in fact her father was deceased. In her written statement on review, she recounted when she discovered that her father was deceased and how she obtained the Death Certificate. She said she left Norway and moved to Britain in 2014 due to abuse she was subjected to by a man she referred to as her boyfriend and the father of her children, but he followed her there. She said that through the Sudanese community she located her sister in Australia who encouraged her to come to Australia but he followed her here as well. (This is different to what was claimed in connection with the visa application that the first named applicant came to Australia so that her children could see their father). The first named applicant said that while in Brisbane he threatened her and was given an AVO for 5 years and the sponsor asked her to come to Sydney. The first named applicant then stated that she ‘just learnt from sister that our mother died in 2012 and after the refusal of my application I learnt as well that my father actually died in 2014’. The first named applicant stated that a witness named Ater Benjamin helped her; he went to the authorities and testified that her father ‘died in village during crisis that erupted in South Sudan in December 2013’ and he was able to send her a death certificate from Juba (the capital of South Sudan).

32. The Tribunal does not accept that the first named applicant discovered her father died in 2014 and obtained the Death Certificate as she now claims. The first named applicant was notified of the visa refusal on 30 January 2019 and the Death Certificate was issued nine days later. It seems quite a coincidence that the first named applicant found out within days of being refused that her father had in fact died 5 years before.  The first named applicant did not explain why she found out her mother died sometime before the visa application was lodged but not about her father’s death until after the visa was refused. Nor did she explain exactly how she came to know her father had died. Additionally, for the reasons given above, the Tribunal has doubts about the reliability of the Death Certificate. The first named applicant’s written statement indicates that it was issued purely on the basis of information provided by a claimed witness, Ater Benjamin. The Tribunal thus gives the Death Certificate no weight and is not satisfied on the evidence before it that at the time of application the first named applicant’s father was deceased.

33. The Tribunal finds on the information the first named applicant provided on the 47OP Form that her father was residing in South Sudan and hence was not usually resident in Australia, and that he was not an Australian citizen, New Zealand citizen or Australian permanent resident. Hence, the Tribunal finds that at the time of application the first named applicant had a ‘near relative’ other than the sponsor who was not usually resident in Australia and was not an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

34. The Tribunal notes that Reverend Bates referred to the sponsor as the first named applicant’s ‘eldest sister’ which suggests that the first named applicant has other sisters. However, the Tribunal does not need to make findings on this given the preceding findings about the first named applicant’s father.

35. For the above reasons, the Tribunal is not satisfied that the first named applicant had no near relatives other than those permitted by the regulations at the time of application. The Tribunal therefore finds that reg 1.15(1)(c) was not met by the first named applicant at the time of application.

    Conclusions – Subclass 835 visa  

36. As the first named applicant did not meet reg 1.15(1)(c) at the time of application, the Tribunal is not satisfied that she was the remaining relative of an Australian Relative for the purposes of cl 835.212. The first named applicant therefore does not meet the criteria for a Subclass 835 visa.

1. The second, third, fourth, fifth and sixth named applicants applied for the visa on the basis that they were members of the family unit of the first named applicant. As the first named applicant does not meet the criteria for a Subclass 835 visa, the Tribunal finds that they do not meet the requirements of cl 835.321. Further, it is not claimed and there is no evidence before the Tribunal to satisfy it that the second, third, fourth, fifth or sixth named applicant is the remaining relative of an Australian relative. Therefore, they do not meet the criteria for a Subclass 835 visa.

   Other visa subclasses

2. In respect of the other visa subclasses there is no material which would permit a finding that any of the applicants meet the prescribed criteria for the visa sought.

3. There is no evidence before the Tribunal that at the time of application any of the applicants claimed to be a carer of an Australian relative, as required by cl.836.212, nor that the application was accompanied by satisfactory evidence that the relevant medical assessment has been sought, as required by Item 1123B(3)(d) of Schedule 1 to the Regulations. The applicants are therefore not entitled to the grant of a Subclass 836 (Carer) visa.

4. The Tribunal finds on the basis of the first named applicant’s passport and the birth certificates of the other applicants that none of the applicants is entitled to the grant of Subclass 838 (Aged Dependent Relative) visa because none of them is old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicants meets the definition of ‘aged dependent relative’ in r.1.03 for cl.838.212 of Schedule 2 to the Regulations.

   Request for compassionate consideration

5. The first named applicant and Reverend Bates asked that the visas be granted on compassionate grounds, it seems, so that the children could see their father. Even if this amounted to compassionate grounds, the Tribunal does not have the power to grant visas or decide the applicants’ review application on compassionate grounds.

   DECISION

6. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

   Mila Foster
   Member

   
   

   ATTACHMENT - Extracts from the Migration Regulations 1994

   1.15     Remaining relative

   (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

   (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

   (b)the other person is usually resident in Australia; and

   (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

   (i)usually resident in Australia; and

   (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

   (d)if the applicant is a child who:

   (i) has not turned 18; and

   (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

   at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

   (2)In this regulation:

   near relative, in relation to an applicant, means a person who is:

   (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

   (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

   (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

   (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).