Mayen (Migration) - [2018] AATA 5980

Mayen (Migration) [2018] AATA 5980 (29 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Monica Amer Mayen
VISA APPLICANTS:  Miss Laat Abraham Marial John
Mr Machiek Abraham Marial John
Miss Kana Acithiec Abraham Marial
Ms Adut Abraham Marial Mayom
CASE NUMBER:  1703232
DIBP REFERENCE(S):  2015075378
MEMBER:Kate Millar
DATE:29 November 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 29 November 2018 at 9:37am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ of an Australian relative – relation to review applicant – nieces and nephew – unfavourable DNA test results – father died in car accident – death certificate – bogus document – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cl 117.211
CASES
EC v MIMIA [2004] FCA 978
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application by Kana, Laat, Machiek and Adut for Child (Migrant) (Class AH) visas, and specifically for Child (Migrant) (Class AH) Subclass 117 (Orphan Relative) visas. Kana, Laat, Machiek and Adult are citizens of South Sudan, and applied for the visas on the basis that they are the nieces and nephew of Ms Monica Mayen, who is an Australian citizen.
A requirement for the grant of a Subclass 117 visa is that the applicants meet the definition of “orphan relative”. This includes that they are the relative of an Australian citizen or permanent resident, they have not turned 18 at the time of the application, they do not have a spouse or defacto partner and they cannot be cared for by either parent because each parent is dead, permanently incapacitated, or of unknown whereabouts. In this case the applicants say their father died in a car accident in Kenya in 2007 and their mother went missing in South Sudan in 2013.
A delegate of the Minister for Immigration was not satisfied that the parents of the applicants were deceased or missing as claimed, and found the applicants did not meet the definition of orphan relative. As a result the delegate refused the applications for the visas under s.65 of the Migration Act 1958 (the Act). Mrs Mayen has applied to this Tribunal for review of the decisions made to refuse to grant the visa applicants visas.
Mrs Mayen appeared before the Tribunal on 22 February 2018 and 28 November 2018 to give evidence and present arguments, and was represented by her registered migration agent. The Tribunal also received oral evidence from Kana and from Mr Samuel Mabor Madol. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka, Dari and English languages.
Mrs Mayen was given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mayen (Migration)

Details

AGLC: Mayen (Migration) [2018] AATA 5980
Case: [2018] AATA 5980
Decision Date: 29 November 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by Mrs Mayen concerning the refusal to grant Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), to several applicants. The dispute centred on whether the applicants met the definition of "orphan relative" of an Australian relative, as required by the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the visa applicants satisfied the criteria for being an "orphan relative" under regulation 1.14 of the Migration Regulations 1994. This involved assessing whether the applicants were related to Mrs Mayen, an Australian relative, whether they were under 18, unmarried, and crucially, whether they could not be cared for by either parent because each parent was dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider if there was any compelling reason to believe that granting the visa would not be in the best interests of the applicants.

The Tribunal's reasoning focused on the evidence of the applicants' relationship to Mrs Mayen. DNA test results provided in relation to one applicant, Laat, were inconclusive regarding an aunt-nephew relationship. Further DNA tests concerning the remaining applicants also indicated it was unlikely there was an aunt-niece or nephew relationship. Mrs Mayen's explanation for the lack of clear familial evidence was that the applicants were the children of her deceased step-brother, and she suggested further DNA testing. However, the Tribunal found that the provided DNA evidence did not establish the required familial link to Mrs Mayen, which was a fundamental criterion for the Subclass 117 visa.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas, as the criteria for the Subclass 117 visa were not met. No claims were advanced in respect of other visa subclasses within Class AH.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Kana now has a child. Mrs Mayen said that she went to a party with friends and was raped by a person who she did not know. Mrs Mayen said they did not know she was pregnant until she attended the medical for the visa application. Mrs Mayen said she did not have a husband otherwise she would have gone to live with the husband. A birth certificate was provided for the child Nyiirapath Abraham Marial born 21 April 2017. CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicants applied for the visas on 30 June 2015. 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. 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 cl.117.211 which requires the applicants to be orphan relatives, as defined by the Regulations, of an Australian relative or is not an orphan relative only because the applicant has been adopted by the Australian relative. To meet the requirement in cl.117.211 that the applicants are orphan relatives of an Australian relative, the applicants must be:· related to Mrs Mayen · not have turned 18 years of age· no have a spouse or defacto partner· cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts· There must be no compelling reason to believe the grant of the visa would not be in the best interests of the applicant.Are the visa applicants relatives of Mrs Mayen? The requirements of cl.117.211 include that the applicants are orphan relatives of an Australian relative. 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 the aunt of an applicant (r.1.03). DNA test results in relation to Laat were provided to the Tribunal on 7 May 2018. The test results were it was inconclusive whether Laat is related to Mrs Mayen as aunt – nephew. A copy of the tests results was provided to Mrs Mayen and she was invited to comment on this information. As stated above, her response was that Abraham was her step brother, that he died in a car accident and that she believes all the applicants are her step-brother’s children and that she would like the other visa applicants to have DNA test conducted. Mrs Mayen was given further time for DNA tests of the remaining visa applicants to be conducted. The results were that it is unlikely there is an aunt-niece or nephew relationship with the remaining applicants. This was again put to Mrs Mayen under s.359A of the Act and she provided a response in the same terms as the previous response. The relationship index used to grade the results ranges from unlikely, followed by inconclusive, likely, very likely, highly likely and practically proven. The index is the relative likelihood of relatedness between two individuals based on ta test of the number of allele(s) they share at several loci.

Decision

Reasons for decision

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 The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.Kate MillarMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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