Mlobane (Migration)

[2020] AATA 4097

Mlobane (Migration) [2020] AATA 4097 (19 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sikhumbulekile Mlobane

VISA APPLICANT:  Miss Menzisi Ndlovu

CASE NUMBER:  1721518

DIBP REFERENCE(S):  OSF2016/075738

MEMBER:Christine Kannis

DATE:19 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 19 July 2020 at 11:44am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – relationship between visa applicant and sponsor – half-aunt and niece – sponsor did not list applicant’s mother as sibling on previous visa application – inconsistent evidence – DNA testing unable to accurately report on such relationship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65

Migration Regulations 1994 (Cth), rr 1.03, 1.14(a)(iii), Schedule 2, cls 117.111, 117.211(b), 117.221

CASE
EC v MIMIA [2004] FCA 978

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 4 July 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. At the time the visa applicant applied for the visa, 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 (the Regulations). Relevantly to this case, they include cl.117.211 and cl.117.221.

4. The delegate refused to grant the visa because he/she decided the visa applicant was over the age of 18 at the time the application was made and did not meet cl.117.211.

5. The review applicant appeared before the Tribunal on 7 October 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The delegate refused the visa based on the visa applicant being 18 at the time of application. The delegate found the application was made on 2 May 2016.

8. The review applicant disagreed with the delegate and provided a receipt for payment of fees dated 29 October 2015 which was identified as payment for “AH 117 Orphan Relative” and the visa applicant was named as the potential applicant. The information on the Department’s file indicates that initially the application was not lodged because of insufficient credit card funds however this appeared to have been remedied by 29 October 2015. The Tribunal places weight on the receipt for payment of fees and finds that the application was lodged on 29 October 2015 and accordingly proceeds on the basis that the time of application was 29 October 2015.

9. The issue in the present case is whether the visa applicant is an orphan relative of an Australian relative. 

   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 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.

11. ‘Orphan relative’ is defined in r.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.117.111. 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. In the present case, the review applicant, Mrs Sikhumbulekile Mlobane, is the relevant Australian relative.

12. Subclass 117 requires that at the time of application and decision the visa applicant is the ‘orphan relative’ of an Australian relative as defined in r.1.14. A visa applicant is an orphan relative if he or she:

    -is a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    -has not turned 18;

    -does not have a spouse or de facto partner;

    -cannot be cared for by either parent[1] because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    -there is no compelling reason to believe that the visa grant would not be in the applicant’s best interests.

    [1] ‘Parent’ is defined in s.5(1) of the Act. See also r.1.14A(1) of the Regulations (post 1 July 2009) which specifies that a reference to ‘parent’ includes ‘step-parent’. 

13. At the time of decision the visa applicant must continue to satisfy the criterion in cl.117.211 (orphan relative or adopted), or not continue to satisfy that criterion only because she has turned 18.

14. The Tribunal notes that in meeting the criteria all aspects of the definition must be considered and met.  If the visa applicant does not meet one aspect of the definition in r.1.14 then she cannot meet cl.117.211.

15. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application and is not an orphan relative of an Australian relative at the time of this decision.

    Age – r.1.14(a)(i)

16. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.   At the time of application the visa applicant declared her date of birth was 10 February 1998.  A Certified Copy of an Entry of Birth Registered in the District of Gwanda in Zimbabwe dated 14 April 2014 was provided. The document records the visa applicant’s date of birth as 10 February 1998. A copy of the visa applicant’s passport issued by the Republic of Zimbabwe was provided which showed her birth date as 10 February 1998.

17. The Tribunal has no evidence that the applicant’s date of birth is otherwise than as stated.  Accordingly, r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision even though the visa applicant is now 21 years of age.

    Spouse or de facto partner – r.1.14(a)(ii)

18. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. When asked whether the visa applicant was partnered the review applicant said, “not that I know of”. The Tribunal is prepared to accept that the applicant does not have a spouse or de facto partner.   Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

19. 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 r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

20. The Australian citizen, Australian permanent resident or eligible New Zealand citizen must be a ‘relative’ of the applicant.[2] Relative is defined in r.1.03 to mean:

    • a ‘close relative’ - which is defined by r.1.03 to mean spouse or de facto partner, child,[3] parent, brother, sister, or a step-child, step-brother or step-sister; or
    • a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

    Although the definition of relative includes a person’s partner, r.1.14(a)(ii) precludes an applicant from being an orphan relative if the applicant has a partner.

    [2] r.1.14(a)(iii).

    [3]  ‘Child’ is defined in s.5CA of the Act and r.1.14A(2) of the Regulations.

21. The review applicant has claimed that she is the visa applicant’s maternal aunt.  She told the Tribunal that her sister, Buhlalusebenkosi Ndlovu (the visa applicant’s mother), passed away in 2010 due to heart related complications arising from the birth of a child in 2008. The review applicant said the child lived for 18 months before also passing away. At hearing the review applicant provided a copy of a Certificate of Death for Buhlalusebenkosi Ndlovu (national identity card number 08-721370Z28) indicating she died on 13 February 2010.

22. When asked about her deceased sister’s children the review applicant initially told the Tribunal she had three children, one from a previous relationship and two from her marriage to the visa applicant’s father, being the visa applicant and the deceased child referred to in the previous paragraph. The Tribunal pointed out that the information before it was that visa applicant’s father passed away in 2002 and her evidence was that the deceased child was born in 2008. The review applicant then said her deceased sister had four children and the deceased child was the child of an affair and not a child of her marriage. She said the visa applicant has a younger sister who is about 19 and lives with a paternal aunt.

23. The review applicant told the Tribunal that after the visa applicant’s mother passed away her children were “distributed” and the visa applicant was cared for by her maternal grandmother, Edith Mabhena. At the time of application a handwritten affidavit dated 7 May (year not stated) signed by Edith Mabhena was provided. Ms Mabhena said she had been staying with the visa applicant as her grandmother but she was now blind and was moving to her brother’s house and can no longer manage to stay with the visa applicant.  She stated that she authorised the review applicant to take the visa applicant to Australia to live with her. She said the review applicant has been financially and materially responsible for the visa applicant since her parents passed away. The affidavit was in English and the Tribunal asked the review applicant whether her mother could read and write English. She said her mother is legally blind and could not have written or read the affidavit. There was no indication that the contents of the affidavit had been read to Ms Mabhena. The Tribunal noted that the signature on the affidavit appears to be in the same handwriting as the contents of the affidavit. Given the review applicant’s evidence that her mother cannot write or read because she is legally blind the Tribunal places no weight on this evidence.

24. A Certificate of Guardianship dated 25 September 2014 was provided. The Certificate indicates states that on 25 September 2014 the juvenile court sitting at Gwanda appointed the review applicant as the guardian of the visa applicant. The document is signed by the Provincial Magistrate. The document does not indicate that the review applicant is the visa applicant’s aunt or that the two have any familial relationship. The document does not indicate the reason the review applicant was appointed as the visa applicant’s guardian.  The document is not evidence that the review applicant is a relative of the visa applicant for the purposes of the visa. The Tribunal finds the document of no probative value for the purposes of the visa and gives it no weight.

25. Due to there being inadequate evidence to support the claimed relative relationship, DNA testing to establish the review applicant’s relationship to the visa applicant was offered.  The review applicant initially declined to undergo DNA testing on the basis that it would take too long. The Tribunal informed her that a refusal to undergo DNA testing may cause it to draw an adverse inference about her reasons for refusal. The review applicant then agreed to undergo testing and explained to the Tribunal that the visa applicant’s mother was her half-sister and not a full sister and asked that this be taken into account. The Tribunal noted that this information had not previously been provided and the review applicant said that culturally they do not refer to the distinction. The Tribunal accepts this explanation.

26. In the months following the hearing the application for DNA testing was initially delayed because the review applicant required time to save the fees payable. Subsequently there appears to have been some confusion with respect to collection of the DNA samples and collection venues however a DNA sample of the visa applicant was collected on 28 February 2020. On 13 March 2020 DNALabs advised the Tribunal that:

    Upon receiving the sample I noticed that the Form 2 was witnessed by the same person who performed the collection. This report therefore does not meet the requirements for the Family Law Regulations 1984 and is therefore not a legal/accredited report.

27. The Tribunal requested recollection and that the witnesses meet the requirements for the Family Law Regulations 1984.

28. On 8 July 2020 DNALabs advised the Tribunal as follows:

    I am emailing you in regards to the case: DNA13629 as requested by Sikhumbulekile Mlobane.

    It has come to our attention that the relationship that is being tested in this case is between Half Aunt to Niece. Unfortunately, we are not able to release results for this relationship.

    The case was established and processed with the relationship as Aunt to Niece, this is our fault as Ms Mlobane had stated the relationship as Half-Aunt to Niece on the application form. We should have advised her at the time of application that it is not a relationship we are able to report on.

    We perform relationship testing to try to establish how likely donors are to be related, though it is not the preferred method of testing as it does not give a definitive yes/no answer. The results for this kind of testing are a categorical statement of how likely the people are related. It is reported on a likelihood scale ranging from unlikely to practically proven but it is also possible for the testing to come back inconclusive.

    Unfortunately Half-Aunt to Niece is not a relationship we are able to accurately report on because the chance for variance is to great and there is an even higher chance for inconclusive results.

    I apologise for the inconvenience caused.

29. Following the hearing the Tribunal sent the following letter to the review applicant:

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MRS

    SIKHUMBULEKILE MLOBANE

    I am writing in relation to the application for review made by you in respect of a

    decision to refuse to grant a Child (Migrant) (Class AH) visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to

    comment on or respond to certain information which we consider would, subject to

    your comments or response, be the reason, or a part of the reason, for affirming the

    decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    Following the hearing on 7 October 2019 the Tribunal requested the Department

    provide its files in relation to previous visa applications made by you.

    On 24 September 2008 you lodged an application for a Subclass 857 visa. Question

    63 of a Form 47ES completed and signed by you requested that you provide details of ALL your other family members not already listed in the form and requested you provide the name, sex, date of birth, marital status and country of residence of your brothers and sisters, including full, half, step and adopted brothers and sisters.

    At the hearing on 7 October 2019 you provided a copy of a Certificate of Death for

    Buhlausebenkosi Ndlovu. You told the Tribunal that the deceased was your sister. You did not include Buhlausebenkosi Ndlovu in the information provided in the Form 47ES with respect to your brothers and sisters.

    The Certificate of Death states the deceased’s age was 32 at the date of her death.

    This means she was born in 1978 or 1979. The dates of birth of your sisters provided

    by you in the Form 47ES do not include a sister born in 1978 or 1979.

    The oral evidence and the Certificate of Death you provided at the hearing is

    inconsistent with the information you previously provided in a Form 47ES.

    The Tribunal has not made a decision in this matter however the inconsistent

    information, subject to your comment or response, would be the reason, or part of the

    reason, for the Tribunal to affirm the decision under review.

    The relevance of this information is that for the visa applicant to be granted a Subclass visa she must be a relative of an Australian relative which in this case is you.

    The information is also relevant because it may raise doubt regarding your credibility and the truthfulness of information you have provided in relation to whether the visa applicant meets the requirements for the visa.

    The Tribunal is also currently awaiting the results of DNA testing to be undertaken by

    you and the visa applicant.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 22 November 2019.

30. On 12 November 2019 the review applicant provided the following response:

    Thank you for the message. I am still saving money to do the DNA test and it’s almost enough.

    My mum had 12 children. She got married at the age of 18 when she was a student teacher. Ten of us are from her first marriage. Menzisi’s mum was the eleventh child from step dad. When I applied for my employer sponsored permanent residency in 2008 I did not list all my siblings because I could not remember the dates of birth for everyone. I didn’t think that it was important by then and I could not obtain that information before the date of submission.

    I have been trying to obtain my half sister Buhlalusebenkosi Ndlovu’s birthday certificate and send it with mine so that you could see mum’s name on hers and mine and maybe you could believe me but no one knows where her birth certificate is. I have never laid about this and all the information I have given you regarding Menzisi’s application is true. I have spoken to DNA testing centre and will let you know booking details soon.

31. The Tribunal notes the dates of birth of her siblings provided by the review applicant in the Form 47ES were limited to years of birth only and day or month details were not provided. She indicated that the years of birth of her two youngest siblings were 1976 and 1983.

32. In the absence of independent verification by DNA test results of the relationship between the visa applicant and the review applicant the Tribunal closely considered any other evidence that would corroborate the relationship between them.  The Tribunal considered the review applicant’s oral testimony at hearing, the information she previously provided to the Department in 2008 and her response to the Tribunal regarding this information.

33. At hearing the review applicant initially said the visa applicant’s mother had three children, the youngest of who was born in 2008 and passed away in 2010. When the Tribunal pointed out that the visa applicant’s father passed away in 2002 the review applicant changed her evidence and said the visa applicant’s mother had four children and the deceased child was the child of an affair and not a child of her marriage. The Tribunal places weight on the review applicant’s failure to include a living sibling of the visa applicant but include a deceased sibling. The Tribunal notes that the living sibling would be at several years older than the deceased child had that chid survived. The review applicant did not provide any explanation for initially excluding a living sibling of the visa applicant when giving evidence about the visa applicant’s mother’s children. The Tribunal also noted that the review applicant changed her evidence only after it was pointed out that the visa applicant’s father could not be the deceased child’s father because he passed away several years before the child was born. The Tribunal acknowledges that this evidence does not relate to the issue of whether the review applicant is the half-aunt of the visa applicant.

1. The review applicant did not name the visa applicant’s mother as her sister on her visa application in 2008. The Tribunal places weight on the information the review applicant provided in 2008 and is mindful that she was requested to provide details of ALL her other family members not already listed in the form. The question requests details of her brothers and sisters, including full, half, step and adopted brothers and sisters. In her response to the Tribunal the review applicant said her mother had 12 children and she did not include the visa applicant’s mother because she could not remember the dates of birth for everyone. As noted above, the Death Certificate of Buhlalusebenkosi Ndlovu indicates that her year of birth was 1978 or 1979.  The Tribunal acknowledges that having 11 siblings may have impacted on the review applicant’s recall of their dates of birth however considers it implausible that she could not remember that one of her siblings was born in 1978 or 1979 but was able to remember that one of her siblings were born before in 1976 and one was born after in 1983. The Tribunal also notes that in the Form 47E the review applicant provided the year of birth for ten siblings and therefore the only sibling not included was Buhlalusebenkosi Ndlovu. The Tribunal considers the review applicant’s explanation for failing to include her claimed half-sister to be unconvincing.

2. The Tribunal decided that there was no probative evidence of the relationship between the review applicant and the visa applicant’s mother. In making this determination the Tribunal takes into account the review applicant’s oral evidence at hearing noting she changed her evidence with respect to the visa applicant’s siblings when the Tribunal pointed out an inconsistency in her evidence; her failure to include the visa applicant’s mother as a sibling in a Form 47ES in 2008; her explanation for this failure and the absence of DNA evidence. The Tribunal acknowledges that the review applicant was unable to provide DNA evidence due to DNALabs advising that they are not able to accurately report on a half-aunt to niece relationship. The Tribunal also notes that there is no paper trail to prove the relationship between the review applicant and the visa applicant’s mother and in particular the Birth Certificate of Buhlalusebenkosi Ndlovu has not been provided.

3. For the reasons of inadequate and inconsistent evidence, as discussed above, the Tribunal is not satisfied that the visa applicant was a relative of an Australian relative. Accordingly, r.1.14(a)(iii) was not met at the time of application.

4. As the Tribunal has found that the visa applicant does not meet r.1.14(a)(iii), it is unnecessary for the Tribunal to consider whether she meets the other aspects of the definition of ‘orphan relative’.

5. Given the findings above, at the time of application, the visa applicant does not meet cl.117.211(a) of Schedule 2 to the Regulations.

   Has the applicant been adopted by the Australian relative?

6. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had 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. There is no evidence that at the time of application the visa applicant was adopted by the Australia relative and the Tribunal finds that, at the time of application, the visa applicant did not meet cl.117.211(b).

7. Accordingly, cl.117.211(b) is not met, and does not continue to be met at the time of decision.

8. Given the findings above, cl.117.211 is not met.

9. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, and this is not only because she has turned 18. It follows that cl.117.221(a) and (b) are not met by the visa applicant.

10. For the reasons stated above, 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

11. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Christine Kannis
    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.