Misago (Migration)

[2019] AATA 3876

Misago (Migration) [2019] AATA 3876 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Irina Misago

VISA APPLICANT:  Ms Niyubushobozi Happiness

CASE NUMBER:  1700304

DIBP REFERENCE(S):  2015075079 OSF2015/075079

MEMBER:Kira Raif

DATE:1 August 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 01 August 2019 at 12:26pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – niece – sponsor failed to declare siblings in her previous visa application – DNA testing – parents deceased – 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, 117.221

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 2004. 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 an 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 both were 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 she was not raised by her family.

10. The delegate invited the visa applicant to comment on the inconsistent information about the 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 that 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 the funeral.

11. The delegate noted that there was a high level of fraud in relation to orphan relative applications. With respect to the visa applicant’s age, the delegate acknowledged that the visa applicant presented a birth certificate issued in Tanzania in May 2014 but the birth certificate states that it was issued ‘as per application in writing signed by Penina Nyonzima, mother of the child’. The delegate noted that the visa applicant’s mother was said to have been killed in 2009, finding that the birth certificate did not contain credible information and could not be given weight. Nevertheless, the delegate accepted, on the basis of the photograph, that the visa applicant was under the age of 18 at the time of the application.

12. The Tribunal invited the visa applicant and the review applicant to undergo DNA testing to confirm their relationship. On 31 July 2019 the Tribunal received advice that the aunt – niece relationship between them is ‘likely’. The Tribunal is satisfied on the basis of that evidence that the visa applicant is the niece of the sponsor 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