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

1. 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. 

2. 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. 

3. 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.

4. 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. 

5. Mrs Mayen was given time after the hearing to obtain DNA testing to establish the relationship between her and the visa applicants.  Mrs Mayen initially obtained DNA test results for Laat, with the results stating it was inconclusive whether Mrs Mayen was the aunt of Laat.  Mrs Mayen then sought DNA testing for the remaining visa applicants.  The results for the remaining visa applicants were received on 17 October 2018, with the finding it was unlikely that Mrs Mayen was the aunt of Kana, Machiek and Adut.

6. The outcome of these results was put to Mrs Mayen in writing under s.359A of the Act.  Mrs Mayen provided a response to the invitation to comment on the results, and as a result a further hearing was held on 28 November 2018. 

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

   SECTION 375A CERTIFICATE

8. The Department files included certificates issued under s.375A of the Act.  On requesting a review of these certificates, they were revoked by a delegate of the Minister and as such did not require comment from Mrs Mayen. 

   SECTION 359A NOTICES

9. The Tribunal issued notices to Mrs Mayen under s.359A and 359(2) of the Act on 17 July 2017, 23 October 2017, 22 June 2018 and 17 October 2018 requiring:

   ·     Information to show she had a death certificate for Abraham Marial Jarial as claimed or, if not, information on why you do not have a death certificate for Abraham Marial Jarial.

   ·     A response to information received from the Nairobi Birth and Deaths Registry that they do not have a death record of Abraham Marial John and the certificate that was provided is a forgery.

   ·     A response to the information that the DNA tests are inconclusive on whether she is the aunt of Laat Abraham Marial John.

   ·     A response to information that DNA tests show it is unlikely Mrs Mayen is the aunt of Kana Acithiec Abraham Marial, Machiek Abraham Marial John and Adut Abraham Marial John.

10. Mrs Mayen’s slow response to these notices has delayed these proceedings, as has seeking further DNA tests. 

11. In response, Mrs Mayen requested further investigation into the death of Abraham Marial Jarial, the father of the visa applicants.  She stated Abraham Marial Jarial is her step-brother, and that she remains convinced these are his children.  She requested further DNA tests for Kana, Machiek and Adult, and was provided additional time to obtain these tests.  On being advised that the tests results were unfavourable, she reiterated that Abraham is her step-brother who died in a car accident in 2007.  She reiterates that she believes the applicants are the children of Abraham with all of them born by the same biological mother and father.  She goes on to state that she cannot predict, confirm or deny each child’s biological father but can confirm she witnessed the marriage between Abraham and their mother and lived with both of them before she came to Australia.  She states she has been taking care of the applicants since the death of their father in 2007. 

    FAMILY HISTORY

12. [Information redacted]. 

13. In 2006 Mrs Mayen assisted her Abraham and his family move from Kakuma Refugee Camp to Kawangware, a suburb of Nairobi. 

14. The applicants state that their father was killed by a car on 11 October 2007 when attempting to cross a road.  They say he left the house in the morning to go to the city and in the city he was hit by a car when trying to cross the road.  Mrs Mayen said that when her brother died Akuch Magun, a member of her church, called her to tell her he had died, as they needed money to take him to the mortuary.  She also spoke to the priest Magok Kidem who took responsibility.  The children and their mother were in Nairobi at the time.  Mrs Mayen said she sent AUD 1,500 that she borrowed from a community pool of money for the burial.  She said he was buried four days after he died.  Prayers were held at the house where they lived, and she paid for the grave, the coffin and for money for the mortuary at the hospital.  She also paid for the cement on the grave.

15. Death certificates provided by Mrs Mayen for Abraham Marial John were twice sent to post to request verification of the document.  On both occasions the document was found to be a forgery.  Most recently, officers visited Nairobi Births, Deaths and Marriages Registry which advised in writing that they do not have a record of the death of Abraham Marial John and the certificate is a forgery.  This was put to Mrs Mayen under s.359A of the Act.  In response she said she has no idea how this could be a fake, as it is the document Kana obtained from the death registration department in Kenya, that her brother died a tragic death and the person who killed him has not been brought to justice.  She states she has cared for the applicants for the last ten years in Kenya as they do not have any other relatives as their mother is missing in South Sudan. 

16. Mrs Mayen also provided a copy of a burial permit stating it is from the Republic of Kenya and was issued under the Births and Deaths Registration Act for Abraham Marial, with the name John added in blue ink at the end.  This document states the date of death is 7 October 2007 and the usual residence was Kangware Nairobi. 

17. Mrs Mayen said after the death of Abraham, the mother of the applicants decided to travel to South Sudan in November 2013 with items to sell.  She arrived in Juba and then travelled to Bol to sell the items, however the war erupted in December 2013 and she has not been heard from since.  The children at this time were in Nairobi with Mabor Madol.  The applicants travelled to South Sudan with Mabor Madol in 2014 to obtain South Sudanese passports and birth certificates and returned to Nairobi in 2015 when they lodged the visa application.

18. Mrs Mayen said the applicants live together in Nairobi.  Since their mother went missing, they have lived alone in Nairobi with cousins occasionally checking on them.  Mabol Madol returned to South Sudan in 2015 and left the applicants with Mrs Mayen’s son. 

19. Kana provided a written statement that states her father died in 2007 when he was hit by a vehicle and her mother went missing in December 2013.  After her mother went missing they were left in the care of her uncle Samuel Mabor. The Tribunal spoke to Kana.  It was difficult getting any responses from Kana about where she lived, who she lived with, and whether she had a baby.   It was decided to try and call her again in the hope that with a better telephone connection it would be easier to communicate with her.  In a later call she could name who she lived with, the age of one sibling and the years of birth of other siblings.

20. 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

21. 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.

22. 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.

23. 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?

24. 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). 

25. 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.

26. 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.

27. 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.

28. 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.

29. 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. 

30. It is not impossible for people who are related to have a low likelihood of relatedness.  In looking at the test results, I have been mindful of this caution and that Mrs Mayen says Abraham was her step-brother and they did not share both biological parents.   

31. At the hearing on 29 November 2018, Mrs Mayen said that she remains convinced the applicants are the children of her brother and that otherwise she would not have borrowed money from the bank to try and bring them to Australia.  She said that her brother impregnated another woman, but his mother did not approve of the match so he married a different person.  She noted again that she and Abraham have different fathers, but their mother was Rebecca Adol.  She said she would not have supported the applicants, including sending over half her Centrelink payments if they were not related, and that the applicants do not have anyone else. 

32. Mrs Mayen’s representative, having not communicated with Mrs Mayen about the application prior to the hearing, chose the hearing to provide the information that she had called the DNA laboratory and was advised there were further tests that could be done.  Mrs Mayen said she was not aware of this information.  After the hearing the representative said that it was intended to say that if Mrs Mayen had a surviving brother, which she does not, further tests could be conducted. 

33. While Mrs Mayen did not actively seek an adjournment, the Tribunal considered whether this matter should be further adjourned.  In this case there has been ample time to seek information about any further tests that could be conducted and provide a submission with supporting evidence to the Tribunal.  This has not been done.  There is no information other than the representative saying she has spoken to someone at the laboratory to show that different tests could be conducted or that any other tests would have a likelihood of a different outcome.  In these circumstances, the Tribunal, while it was not formally requested, considered whether a further adjournment was warranted but concluded it was not. 

34. While Mrs Mayen states she has been supporting the children, and was distressed about being separated from them tests have been conducted on four people with the result that three of the applicants are unlikely to be related to Mrs Mayen, and in the case of Laat the tests were inconclusive.  In these circumstances I am not satisfied that the applicants are the relatives of Mrs Mayen. 

35. As a result I am not satisfied the applicants are relatives on an Australian relatives as required by r.1.14 and cl.117.221(a).

    Have the applicants been adopted by an Australian relative?

36. The applicants may meet cl.117.211(b) if they are not an orphan relative only because they have been adopted by the Australian relative.  The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

37. In this case I am not satisfied that Mrs Mayen is an Australian relative of the applicants and cl.117.211(b) is not met.

38. 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

39. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    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.