MUCHIRI (Migration)

[2019] AATA 1660

MUCHIRI (Migration) [2019] AATA 1660 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms ANN MUCHIRI

VISA APPLICANT:  Master WILTON NJAI WAIRIMU

CASE NUMBER:  1615854

DIBP REFERENCE(S):  OSF2015/075593

MEMBER:Kira Raif

DATE:25 January 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 25 January 2019 at 12:31pm

CATCHWORDS

MIGRATION –Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) –orphan relative of an Australian relative – DNA test – relationship between applicant and sponsor as maternal aunt and nephew – sponsor has been appointed guardian – death certificate of mother a genuine document – location of father unknown – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, 1.17, Schedule 2, cls 117.111, 117.211

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 13 September 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 Kenya born in October 2015. He claims to be a nephew of the sponsor. The visa applicant applied for the visa on 22 October 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. The review applicant appeared before the Tribunal on 22 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s relatives. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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).

6. 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.

7. ‘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?

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate accepted the child’s age and that the visa applicant was under the age of 18 at the time the application was made. The visa applicant claims to be the nephew of the sponsor but the delegate was not satisfied of that relationship. The delegate noted in the decision record that DNA testing was not offered because the delegate was also not satisfied about the visa applicant’s status as an orphan relative.

9. The review applicant confirmed to the Tribunal that they arranged the DNA test but the visa applicant had not completed the test. On 16 January 2019 the Tribunal received the results of the DNA test which confirm the relationship between the review applicant and the visa applicant as that of maternal aunt and nephew. Having regard to that evidence, the Tribunal is satisfied that the visa applicant is the nephew of the sponsor and a relative of the sponsor.

10. The visa applicant provided with his application evidence that the sponsor has been appointed as a guardian for the visa applicant. The Tribunal acknowledges that evidence but notes that guardianship does not in itself establish that the visa applicant’s parents are both deceased or of unknown whereabouts as the guardianship could have been granted for any number of reasons that are not related to the visa applicant’s parents.

11. The visa applicant claims that his mother Mercy Wairimu Muchiri is deceased and he provided a death certificate for her. The visa applicant claims his father is unknown. The delegate noted that the visa applicant failed to present any evidence of having made any effort to locate his father. The delegate was not satisfied the visa applicant was an orphan relative.

12. The review applicant provided a written submission to the Tribunal addressing the delegate’s concerns. The review applicant provided a number of documents to the Tribunal on 14 November 2018. These include family photographs to evidence the relationship. The Tribunal acknowledges that evidence but finds it inadequate as evidence of family relationship because it is impossible for the Tribunal to determine that the photographs do in fact depict the applicant’s family members. The review applicant provided to the Tribunal the funeral program and memorial service details for Mercy Wairimu Muchiri. There is a statement from the Ministry of the Interior and “Cordination” of National Government which confirms that the visa applicant is an orphan. It is not stated how that information was obtained or whether it was verified by the writer and for these reasons, the Tribunal does not consider that document to be probative. There is also a statement from the family doctor in relation to Wangechi Muchiri indicating she cannot look after herself due to various medical conditions.

13. In oral evidence the review applicant told the Tribunal that her sister was estranged from the family and they did not know where she lived. She said that by the time the neighbours told them about the sister’s poor health, her sister had already died. Later on they organised a post-mortem which showed that her sister died as a result of pneumonia which affected her respiratory system. The review applicant said that her agent did not ask for the record of the eulogy and that is the reason she did not provide it previously to the Department.

14. In relation to the child’s father, the review applicant said that nobody knows who the father is. When her sister passed away, her death was announced in the national papers but nobody came forward. She said nobody knows who the father is and her sister has been estranged from the family. Since the child’s mother passed away, he was taken care of by his grandmother.

15. The Tribunal found the review applicant’s evidence credible and persuasive. The Tribunal accepts her evidence that the father of the visa applicant is unknown. The Tribunal finds that the child cannot be cared for by his father because his whereabouts are unknown.

16. On 24 January 2019 the Tribunal received advice from the overseas post confirming that the death certificate in relation to Mercy Wairimu Muchiri is a genuine document. The Tribunal is satisfied, having regard to that advice and other evidence of Ms Mercy Muchiri’s death presented to the Tribunal, that the visa applicant’s mother is deceased. The Tribunal is satisfied that the visa applicant cannot be cared for by parents because each of them is dead or of unknown whereabouts. The visa applicant satisfies r. 1.14(b).

17. The visa applicant was born in 2006 and is under the age of 18. There is nothing to suggest that he has a spouse or de facto partner. As noted above, the results of the DNA test confirming the aunt – nephew relationship between the visa applicant and the review applicant. The Tribunal is satisfied the visa applicant is a nephew and a relative of the sponsor. The visa applicant meets r. 1.14(a).

18. With respect to r. 1.17(c), the review applicant explained to the Tribunal that at his age, the visa applicant needs support which he cannot get otherwise. She has a stable job and a house where he can live. Her children also work and can help. The Tribunal is satisfied there are no compelling reasons to believe that the grant of the visa would not be in the best interests of the visa applicant. The visa applicant meets r. 1.14(c).

19. The Tribunal finds the visa applicant is an orphan relative within the meaning of r. 1.14. The visa applicant meets c. 117.221 and cl. 117.221.

    Conclusion

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

    DECISION

21. 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