Mansaray (Migration)

[2023] AATA 1772

Mansaray (Migration) [2023] AATA 1772 (14 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Aminata Mansaray

VISA APPLICANT:  Mr Mohamed Mansaray

REPRESENTATIVE:  Ms Sara Khodajoo

CASE NUMBER:  2216399

HOME AFFAIRS REFERENCE(S):          F2019/022280

MEMBER:SM Michael Cooke

DATE:14 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl 117.211 of Schedule 2 to the Regulations

·cl 117.212 of Schedule 2 to the Regulations

·cl 117.221 of Schedule 2 to the Regulations.

Statement made on 14 April 2023 at 11:26am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – sibling relationship – half-sister – DNA test results – first degree relative relationship index – second degree relative relationship index – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.212, 117.221

CASES
Claridge v MIBP [2013] FCCA 1953
Mercado v MIAC [2007] FMCA 1216

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 25 October 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 23 April 2019. 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 of the Regulations.

4. The delegate refused to grant the visa because the applicant did not meet cl 117.211 and 117.212 of Schedule 2 to the Regulations because he was not an ‘orphan relative’ of the sponsor.

5. The Tribunal has reviewed all the existing information and additional information tendered by the applicant’s representative.

6. The Tribunal is of the view that the matter can be finalised ‘on the papers’ without recourse to a hearing.

7. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is an orphan relative of her sponsor.

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

10. 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 (the 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.

    Definitions

11. The terms ‘brother’ and ‘sister’ are relevantly defined in the Macquarie Dictionary as, respectively, ‘a male child of the same parents as another (full brother)’ or ‘a male child of only one of one's parents (half-brother)’; and ‘daughter of the same parents (full sister)’ or ‘daughter of only one of one's parents (half-sister)”.  Mercado v MIAC suggests that an expansive approach to the word ‘brother’, as including a ‘half-brother’ is appropriate in the context of the Regulations. In that case, the Federal Magistrates Court agreed with the Tribunal that ‘brother’ in the definition of ‘overseas near relative’ in reg 1.15(2)(a) of the Regulations, included a ‘half-brother’.  The Court’s reasoning would be equally applicable to the use of the word ‘sister’ in the Regulations. 

12. Relevantly, in Claridge v MIBP the Court agreed with the reasoning set out in Mercado and found that the term ‘brother’ included ‘half-brother’.  The Court noted that while the meaning to be ascribed to words may change from time to time, there is judicial authority of some antiquity supporting the reasoning adopted in Mercado.  The Court further observed that by inference the same reasoning would apply to the term ‘sister’. 

13. Whether two people are in a ‘half’ relationship will generally only arise in the context of sibling relationships (i.e. brother or sister) or relationships derived from sibling relationships (i.e. aunts, uncles, nieces, nephews and cousins). The reasoning in Mercado and Claridge may be regarded as relevant wherever such relationships fall for consideration under the migration legislation.

14. The Department requested the applicant, his sister (Aminata Mansaray) and his caregiver (Fanta Mariezan Mansaray) to undertake DNA tests to prove their potential sibship. The authorised DNA Laboratory (in Australia) gave a report in which the following information was conveyed:

    Individuals who are genetically related to each other will have a statistical likelihood of sharing DNA. A parent will share exactly 50% with a child while a sibling will, on average, share 50% (25% from each parent) overall with each other sibling. A half sibling would share only part of the pattern on the common parent {25%). Some siblings may share a significant number of alleles while others may share none and yet still be full siblings. Cousins are expected to share some alleles since one of their parents are siblings. Alleles can also be shared by unrelated individuals by chance in a proportion that is predicted by how common the allele is in the population.

    The biological relationships we performed a statistical analysis on are as follows:

    1st degree relatives: Full siblings

    2nd degree relatives: Half siblings, Aunt/Uncle to Niece/Nephew, Grandparent to Grandchild

    Statistically;

    S15829 and S10989 (The Report numbers for Fanta Mariezan Mansaray and Mohamed Mansaray)

    1^st degree relative relationship index: 15.99

    1^st degree relative relationship is “likely"

    2nd degree relative relationship index: 24.95

    2nd degree relative relationship is “very likely"

    The profiles are 15.99 times more likely if Fanta Mariezan Mansaray and Mohamed Mansaray are related as first-degree relatives than unrelated.

    The profiles are 24.95 times more likely if Fanta Mariezan Mansaray and Mohamed Mansaray are related as second-degree relatives than unrelated.

    S15829 and S10839 (The Report numbers for Fanta Mariezan Mansaray and Aminata Mansaray)

    1st degree relative relationship index: 15.07

    1st degree relative relationship is “likely"

    2nd degree relative relationship index: 57.32 2nd degree relative relationship is “very likely"

    The profiles are 15.07 times more likely if Fanta Mariezan Mansaray and Aminata Mansaray are related as first-degree relatives than unrelated.

    The profiles are 57.32 times more likely if Fanta Mariezan Mansaray and Aminata Mansaray are related as second-degree relatives than unrelated.

15. The sponsor (Aminata Mansaray) responded to the Department request for comment on the DNA test outcome as follows:

    I am responding to your email regarding the DNA results of Aminata Mansaray and Mohamed Mansaray. I was told to do a DNA test to confirm that Mohamed and I are siblings and the results stated that full siblingship is likely. As such, the main essence of proving siblings’ relationship between Mohamed and I was established. I spoke to the DNA Centre, and I was told that Siblings DNA test doesn't give an accurate results and to prove a full and accurate siblingship is through parental DNA. Unfortunately, both parents are deceased in addition my DNA was done through saliva and brother's DNA test was done through blood. Even with that, the different methods of conducting the DNA test the results proved that full sibling’s relationship is likely to be between Mohamed and I.

    Mohamed is my only living relative and this issue is psychological affecting me, especially when I am certain that Mohamed and I share both parents. We have established through the DNA that we are siblings, and it has been confirmed that siblings DNA results is not 100 percent accurate, and the clinic confirmed to me that the essence of the DNA test they conducted between my brother, and I was to show that we are siblings which the results confirmed. Hope you take this explanation into consideration.

    Thanks

16. The Tribunal has noted the above submission and juxtaposed it with the available DNA laboratory results in making the below findings.

17. ‘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 117.211. 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, his sister (Aminata Mansaray) is the relevant Australian relative.

18. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.

    Sponsorship

    117.212

19. The applicant is sponsored:

    (a) by the Australian relative, if the relative:

    (i) has turned 18; and

    (ii) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen;

20. The Tribunal finds that the Australian relative:

    (i) has turned 18; and

    (ii) is a settled Australian citizen

21. The Tribunal finds, therefore, that the applicant meets cl.117.212 of the Regulations.

    Age – reg 1.14(a)(i)

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

23. The Tribunal finds that the visa applicant’s age at time of application was 15, He is 18 years old at time of decision. Accordingly, reg 1.14(a)(i) was met at the time of application and does not continue to be met at the time of decision - due to the effluxion of time as the visa application has now turned 18 at time of review.

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

24. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.

25. The Tribunal finds that the visa applicant did not have a spouse or de facto partner at the time of application and there is no evidence he has a spouse or de facto partner at time of decision. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

26. 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.

27. The Tribunal finds that the visa applicant is a relative of the review applicant (within the meaning of reg 1.03 as set out above) at the time of application and decision. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

28. 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.

29. The Tribunal finds that the evidence presented to the Department (and accepted by them) indicates that the visa applicant cannot be cared for by either parent because each of them is dead.

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

    Best interests – reg 1.14(c)

31. 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.

32. The Tribunal finds that the grant of a visa would be in the best interests of the visa applicant as he would be able to reunite with his sister and make a new life in Australia.

33. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

    Conclusion on time of application criterion

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

    Conclusion on time of decision criterion

35. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, but only because the visa applicant has turned 18. It follows that cl 117.221 is met.

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

    DECISION

37. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl 117.211 of Schedule 2 to the Regulations

    · cl 117.212 of Schedule 2 to the Regulations

    ·cl 117.221 of Schedule 2 to the Regulations.

    Michael Cooke
    Senior 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.