Misago (Migration)

[2019] AATA 4688

Misago (Migration) [2019] AATA 4688 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Irina Misago

VISA APPLICANT:  Ms Mpawenayo Jene

CASE NUMBER:  1700302

DIBP REFERENCE(S):  OSF2015/075078

MEMBER:Kira Raif

DATE:11 October 2019

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; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 11 October 2019 at 1:18pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) –inconsistent evidence – review applicant raised by another woman – disruption due to war – review applicant lost contact with sister and was unaware of visa applicant niece’s existence – relationship confirmed by DNA testing – orphan status – genuineness of document – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211, 117.221

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 Immigration on 31 October 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Burundi, born in June 2001. She applied for the visa on 5 May 2015. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was an orphan relative of the Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

4. At the time the application was made, 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.

5. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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 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.

6. ‘Orphan relative’ is defined in r.1.14 of the Regulations. 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’ 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): r.1.03. 

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

7. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

8. The visa applicant claims to be the niece of the sponsor. She claims that her father Enos Bucumi and mother Penina Niyonzima are deceased and that were both killed in Burundi in 2009.

9. The primary decision record shows that the sponsor was granted a visa in 2005. In her application she did not declare any siblings. The sponsor was interviewed in October 2004 and told the Department that she did not know of any siblings as she was not raised by her mother but by another woman, who was not related, and who later died. The sponsor said she did not know why was not raised by her family.

10. The delegate invited the visa applicant to comment on the inconsistent information about family composition provided by the sponsor in her visa application and by the visa applicant. In response, the sponsor provided a statutory declaration in which she stated she did not declare the visa applicant in her interview as she did not know of the visa applicant’s existence. She did not declare her sibling as she did not know if she was alive and whether she had any children. She assumed her father and siblings had died. The sponsor said that during the war, her mother was shot. Her father fled and when he returned, the family was gone. The lady who raised her tried to find her father and learned in 2005 that he lived in a refugee camp in Tanzania. She found out that the father had another wife and two children. The sponsor stated that her father died in 2010. She has no evidence of death but her husband attended his funeral.

11. The delegate noted that there was a high level of fraud in relation to orphan relative applications. The delegate accepted that the visa applicant was under the age of 18 but was not satisfied that the visa applicant was an orphan. The delegate was also not satisfied that the visa applicant was a relative of the sponsor but DNA testing was not offered because other requirements were not met.

12. The Tribunal invited the review applicant and the visa applicant to undertake DNA testing to confirm their relationship. On 31 July 2019 the Tribunal received advice that the relationship was inconclusive and that it was 1.45 times more likely that there was an aunt-niece relationship between the visa applicant and the review applicant which provided inconclusive evidence of the relationship between them. The Tribunal wrote to the review applicant pursuant to s. 359A seeking her comments on the above information and in response, the review applicant sought an opportunity to do another DNA test. The Tribunal did allow the review applicant and the visa applicant to undertake another DNA test. On 11 October 2019 the Tribunal received the results of that test showing that there was a 96% chance that the visa applicant and the review applicant were aunt and niece. The Tribunal is satisfied, having regard to that evidence, that the visa applicant is the niece and a relative of the sponsor.

13. The visa applicant’s passport and birth certificate have been provided with the application. The Tribunal accepts, as did the delegate, that the visa applicant was under the age of 18 when the application was made. There is no evidence that the visa applicant has a spouse or a de facto partner. The Tribunal has found that the visa applicant is a relative of the sponsor. The visa applicant meets r. 1.14(a).

14. With respect to her orphan status, in January 2019 the review applicant provided to the Tribunal an attestation from the local administration officer for Mabanda Municipality dated 18 May 2018 confirming her status as an orphan. The attestation does not explain on what basis it was issued or what checks, if any, have been done to confirm the visa applicant’s status as an orphan. The Tribunal verified this document with the overseas authority. In March 2019 the Tribunal received the following information from the overseas post:

    A representative from the IM attended the issuing office and was advised that

    ·     The death certificates for the parents were presented to support the claimed orphan status of the applicants

    ·     No documentation was provided to show that the applicants were the children of the deceased, however the Administrator stated that the family was personally known to him

    ·     The Administrator knows that the family originated from the area as the applicant’s grandfather was well known in the area

    ·     A certificate of repatriation from UNHCR was provided in support of the application

    ·     The document was issued byte h issuing authority and the information continued in the document matched the information in record.

    It was concluded that the attestation issued by the Mabanda Municipality was a genuine document.

15. Having regard to that evidence, the Tribunal is satisfied, on balance, that the visa applicant’s parents are deceased. The Tribunal finds that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The visa applicant meets r. 1.14(b).

16. The review applicant has expressed her willingness to care for the visa applicant and has indicated that she has the capacity to do so. There is no compelling reason to believe that the grant of the visa would not be in the best interest of the applicant. The Tribunal finds that the visa applicant meets r. 1.14(c) and that she is an orphan relative of the sponsor. The visa applicant meets cl. 117.211 and cl. 117.221.

    Conclusion

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

    DECISION

18. 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; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member