Phohleli (Migration)

[2019] AATA 1975

Phohleli (Migration) [2019] AATA 1975 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Neo Diana Phohleli

CASE NUMBER:  1837804

DIBP REFERENCE(S):  CLF2017/61576

MEMBER:John Billings

DATE:28 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

·cll.835.212 and 835.221 of Schedule 2 to the Regulations.

Statement made on 28 May 2019 at 5:25pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – remaining relative – no ‘near relative’ – identity of biological father – no contact – whereabouts unknown – identity not disclosed at the outset – death certificate obtained – no other children – issue of paternity – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 835.212, 835.221

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 4 December 2018 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Ms Phohleli, applied for the visa on 1 September 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, Ms Phohleli is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.835.212.

3. The delegate refused to grant the visa on the basis that cl.835.212 was not met.  The delegate considered evidence that Ms Phohleli is the daughter of an Australian citizen (her mother, the sponsor for the visa, Ms Konosoang Augustine Phohleli).  But Ms Phohleli did not provide any information to the Department about the identity of her biological father.  The only information the Department was given about that man was to the effect that he never accepted responsibility for Ms Phohleli and she never had any contact with him or any relationship with him.  The delegate noted that Ms Phohleli’s father was nevertheless considered to be a “near relative” as defined in the Regulations.  The delegate further noted that as the father’s identity could not be verified, it was impossible to verify if he had any other children who would be Ms Phohleli’s step-siblings. 

4. In circumstances described below, Ms Phohleli has provided evidence to the Tribunal about her father’s identity and evidence that he died in August 2017 (which was prior to the date of the visa application) without having any other children.           

5. Ms Phohleli appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Phohleli’s mother and, by telephone, from Ms Phohleli’s mother’s sister, Ms Mahali Juliet Majalle.

6. Ms Phohleli was represented in relation to the review by her lawyer and registered migration agent. The representative attended the Tribunal hearing.  (Since the hearing Ms Phohleli has withdrawn her authorisation for him to be her representative). 

7. Ms Phohleli is a 29 year old national of Lesotho.  She has never been married or in a de facto relationship.  She does not have any children.  She works as a personal care attendant and is working towards a career in nursing.  She lives in Melbourne with her mother and teenaged step-sister, Ms Mpho Patricia Phohleli (“Patricia”). 

8. Ms Phohleli’s mother and Patricia are Australian citizens.

9. Ms Phohleli first arrived in Australia in December 2014 holding a Class FA Subclass 600 Visitor visa.  She departed before the visa expired.  She was granted a Class TU Subclass 572 Student visa in June 2017 that ceased on 13 September 2017.  Holding that visa she entered Australia on 14 July 2017.  She has departed and re-entered Australia since then.  She currently holds a Bridging A visa.

10. In the visa application, where promoted to give details of her parents and siblings, Ms Phohleli gave the names and dates of birth of her mother and Patricia only.  There is no information about her father in the sponsorship. 

11. Ms Phohleli’s submitted her birth certificate, issued in 1992, with the visa application.  (Notes on the Department’s file indicate that it is the same document as the birth certificate she submitted with her previous visa applications[1]).  Ms Phohleli’s mother’s details appear in the birth certificate, but the certificate contains no information about her father.  Ms Phohleli later submitted a further birth certificate to the Department that was issued in 2015: see further below.  

    [1] Folio 39 of Department’s file

12. On 17 July 2018 the Department requested Ms Phohleli to provide further information, including the identity and whereabouts of her father.  Apparently in response to that request, Ms Phohleli provided material to the Department that included a Form 80 (Personal particulars) dated 23 July 2018.  That document named her mother as one of her parents but contained no information about her father.  She also provided a Form 54 (Family composition) dated 23 July.  She named only her mother, Patricia and herself.  Where details of her father were to be recorded all that appears is the word “unknown”, written in the column headed “Home address”. 

13. On 15 October 2018 the Department made a further request for information.  This time the request included that Ms Phohleli provide information including the full name and date of birth of her father and evidence to support her claim as to who her father is.  The request also included that Ms Phohleli provide details of her mother’s relationship history and any children of those relationships.  In response Ms Phohleli submitted material including a statutory declaration by her mother dated 24 October 2018.  Ms Phohleli’s mother declared that she had been married twice.  There were no children of the first marriage.  She had Patricia with her second husband.  She further declared that she raised Ms Phohleli with her family because “since she was born” her father “refused her” and the family never had any contact with him and she had no idea of his whereabouts after 29 years.  Ms Phohleli also submitted an affidavit to like effect, made in October 2018 by Mr Lebohang Simon Phohleli (her mother’s brother). 

14. Ms Phohleli’s mother is aged 54 years.  She also works as a personal care attendant.  Her first marriage was from 1992 to 1997.  Her second marriage was to a man with whom she commenced what was said to be an “on and off” relationship in 1982.  That man sponsored her for a Partner visa.  She married him in June 2011 and visited Australia later that year.  That was about 10 years after she gave birth to Patricia.  Ms Phohleli’s mother was granted a temporary Partner visa in 2012 and re-entered Australia that year.  She was granted a permanent visa in October 2014.  She was divorced in 2016. 

15. The Department’s movement records show that Ms Phohleli’s mother and Patricia have been onshore for all but short periods of time since 2014. 

16. Ms Phohleli applied for review in time though out of caution she made an application online after she posted a form that she completed by hand.  The Tribunal refers below to relevant contents of the form.    

17. In March 2019 Ms Phohleli requested and was granted a hearing postponement when her representative notified the Tribunal that he was awaiting a formal response from the Registrar of Births and Deaths in Lesotho concerning the death of Ms Phohleli’s father. 

18. Prior to the hearing on 11 April, the Tribunal received material including a further statutory declaration by Ms Phohleli’s mother, dated 7 March, a death certificate, and an affidavit by Ms Phohleli’s aunt, Ms Majalle, dated 8 April. 

19. The statutory declaration named Mr Lekula Matlejane as Ms Phohleli’s biological father.  Ms Phohleli’s mother declared that Ms Phohleli was born “out of wedlock”.  She said that in those days, according to tradition, that was shameful, so Mr Matlejane “denied the incident” even when her parents went to see his family.  After the birth her family went to his family again but to no avail.  Her father (Ms Phohleli’s grandfather) tried to look for Mr Matlejane again in the 1990s but could not find him.  Ms Phohleli was raised by her mother with the support of her mother’s family.  It was declared that the father’s name was not included in the birth certificate as “it would cause complications” for her when the father would have to sign documents for her.

20. The death certificate states that Tsepo Lekula Samuel Matlejane, a civil servant, died in August 2017 of natural causes at the age 56 years.

21. In her affidavit, Ms Majalle deposed that she had made several attempts to look for Mr Matlejane since mid-June 2018.  She visited the place where he lived with his mother and went to the chief who informed her that Mr Matlejane had died.  She then wrote to the authorities, including the government ministry that employed Mr Matlejane, requesting his death certificate.  By implication she said that this was not successful at first. 

22. In a further affidavit by Ms Majalle, dated 9 April, submitted on the day of the hearing, she deposed that she finally obtained a copy of the death certificate from the ministry that employed Mr Matlejane. 

23. During the hearing the representative submitted copy emails ostensibly passing between him and the Director, National Identity and Civil Registry Department, Ministry of Home Affairs, Lesotho: see below.        

24. Further material has been submitted since the hearing.  That includes a further affidavit by Ms Majalle, dated 9 May 2019.  Ms Majalle deposed that she went to the ministry that employed Mr Matlejane to inquire whether he had any children.  (Ms Phohleli and her mother and Ms Majalle had stated in evidence to the Tribunal that they did not know whether Mr Matlejane ever had children).  Ms Majalle was denied the information on privacy grounds.  She went to the place where Mr Matlejane had lived and “the villagers” confirmed that he did not have any children.  She went to see the chief several times but was without success as there were so many people wanting to see him.  (The Tribunal received photographs relating to that).  On 8 May Ms Majalle was able to contact with chief’s “messenger” who “strongly confirmed” that Mr Matlejane was not married and did not have any children.  A letter, ostensibly by Mr Aibonake Donald Khotseng (“the messenger of Chief Majara Theko” in a district of Maseru) states that he knew “Lekula Matjejane” (sic) and that Mr Matlejane “lived as a bachelor in his life time”. 

25. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The case is problematic.  In some respects, to be mentioned, Ms Phohleli and her mother and aunt were not impressive witnesses.  On the other hand, there was reasonable consistency in the evidence about the identity of the person who was Ms Phohleli’s biological father and why he was not named in the (two) birth certificates and why he was not named even in the visa application and the other forms submitted to the Department. 

27. Ms Phohleli’s mother confirmed in oral evidence that she had always known the identity of Ms Phohleli’s father.  Ms Phohleli’s evidence was vague and confused as to when she became aware of that.  She told the Tribunal about a conversation she had with her mother when she was aged 10 or 11, and another conversation they had when she realised that she needed to identify her father for the purpose of her visa application.  She maintained that hearing his name was one thing but keeping it in mind was another.  She emphasised that she had never had any contact with him or any relationship with him.  She said in essence that she had never provided his name to the Department because she had never had any contact with him or any relationship with him.  She added that she thought that if she included the name of her father in a “legal document” she would have to provide evidence about him (which she was unable to do at the time).  (Ms Phohleli’s mother said that the reason the father’s name was not disclosed was because he had disappeared from her life and she had been the one who had taken responsibility for her daughter).  Ms Phohleli more or less conceded however that she knew the name of her father by the time she spoke to her aunt and her aunt began her inquiries in mid-2018.  Despite all this, it was not until March this year that Mr Matlejane’s name was disclosed. 

28. The identity of Ms Phohleli’s biological father ought to have been disclosed at the outset.  It was only after the visa was refused that his identity was disclosed and that (as would be required for the application to be successful) claims were put forward that he died prior to the date of the visa application having had no children apart from Ms Phohleli.  These circumstances invite suspicion.  Evidence of Mr Matlejane’s death obviously leaves open the question of paternity - a point that, incidentally, is recognised in email by the official in Lesotho who was essentially asked to help it be confirmed that Ms Phohleli’s biological father is deceased.  The Tribunal has therefore seriously considered the possibility that Mr Matlejane is actually not Ms Phohleli’s biological father and that – wrongfully - steps may have been taken simply to obtain and submit the death certificate of this man because he was known to have died before the date of the visa application. 

29. While the Tribunal has some serious reservations about the case, the Tribunal ultimately finds that Ms Phohleli’s biological father is Mr Matlejane, that he is deceased, and that he did not have any children apart from her.    

30. In parenthesis, the Tribunal mentions that it was concerned at first by a statement in the application for review form.  On page four there appear the words “unknown father’s identity”.  Ms Phohleli acknowledged that she wrote that.  The form was completed in December 2018.  That was months after Ms Phohleli, who by then knew the name of the person claimed to be her father, spoke to her aunt who began making inquiries about him.  On the face of it, the statement in the form and the oral evidence are contradictory: on the oral evidence the man’s identity was not unknown to Ms Phohleli when she made the application for review.  It is important to read the whole page however.  The form prompted Ms Phohleli to indicate the decision she wanted to be reviewed.  She indicated that she wanted to have her visa refusal reviewed.  What she then did was to add the words “unknown father’s identity” after the word “Other” (that is, any “Other” decision to be reviewed).  It is not clear why she would add anything.  The Tribunal considers that Ms Phohleli was genuinely confused when it questioned her about these matters.  There is more than one way to read the document.  A fair reading is that she was indicating really no more than that she wanted to have the decision to refuse the visa reviewed and that the decision was made on the basis of her father’s identity being unknown.   

31. The Tribunal returns to its assessment of the oral evidence.  At times Ms Phohleli did not give evidence in a straightforward manner.  When being asked, for instance, when it was she first learned her father’s name she was hesitant and said she was confused.  She said it had been a very emotional time for her and that she had a “meltdown”.  Ms Phohleli was vague about when it was that she was informed that her biological father had died.  (Ms Majalle said she could not remember when it was in 2018 that she found out about his death but she thought it was in December 2018 that she told Ms Phohleli’s mother about it).  Ms Phohleli also displayed very limited knowledge about her father.  Explaining this, she said more or less that she had never really cared about him.  Asked if she could say why it would be that although her aunt began making inquiries in mid-2018 it was not until March 2019 that a death certificate was submitted, Ms Phohleli could say only that things work very slowly in Lesotho.  Further to these points, Ms Phohleli and her mother gave inconsistent evidence, for instance, as to the amount of time she spent in her mother’s care as a child.  (The Tribunal heard that some of the time she stayed in her village with her grandparents and other family while her mother was working in the city).  This was important because Ms Phohleli seemed not to know about her mother’s first marriage – although that marriage spanned the years from when Ms Phohleli was aged about three until she was aged 10 or thereabouts.  And Ms Majalle did not immediately acknowledge the first marriage when the Tribunal asked about that.  Concerning her lack of knowledge of the first marriage Ms Phohleli said in effect that she wanted to be discreet when talking about her mother’s relationships, because there had been a number of them. 

32. The Tribunal has come to the view that the way Ms Phohleli and her mother gave oral evidence – if not also the very failure to disclose the father’s name from the outset – reflects a lack of understanding on their part rather than any intention to give false or misleading information to the Department or the Tribunal.  In giving oral evidence they were anxious and unsettled rather than deliberately evasive, in the Tribunal’s view.     

33. The situation is that information about the biological father was omitted altogether from the material provided to the Department.  That is concerning, of course – especially where the name was always known to the sponsor, the forms promoted Ms Phohleli to disclose the name, and the Department specifically requested information about the father on two occasions.  Ms Phohleli’s primary explanation is that she did not have any contact or relationship with her father.  Nevertheless the Tribunal remains concerned, especially given that Ms Phohleli was advised and assisted by a lawyer and registered migration agent. 

34. Although there are these serious concerns, the situation would be different if it had been expressly stated in the visa application that the identity of the father was unknown.  The situation would also be different if Ms Phohleli provided a name in the application but was later claiming that it was not the correct name and that Lekula Matlejane was actually the correct name.

35. There is a general but important point to make.  The Tribunal has regard to the difficulties that any person in Ms Phohleli’s situation would be likely to face.  At the beginning of the process Ms Phohleli submitted a birth certificate that did not include the name of her father.  If it is accepted, as the Tribunal does accept, that her father was never involved in her life, and that his whereabouts were unknown to her family for decades, it could indeed be hard for her or her family to trace him.  And establishing paternity where the putative father had died would be more complicated than if he were alive and cooperative.  Further to that, proving a negative – that the man did not have any other children – could also be difficult. 

36. In Ms Phohleli’s case the Tribunal has received evidence of her father’s identify from her mother in particular.  There is a death certificate for that man.  While the Tribunal has noted the reservations it has about the case, there is nothing about the death certificate to suggest that it might not be genuine.  This is not a case where expert examination of the certificate is warranted.  Of course, if the certificate were found not to be authentic the application would fail on other grounds.  The point is that if the certificate is authentic, still there would be the issue of paternity that, in the absence of DNA evidence, would have to be determined on the oral evidence.  The Tribunal has made findings about paternity in Ms Phohleli’s favour because it accepts her mother’s evidence about that.      

1. The Tribunal now mentions some miscellaneous points. 

2. The Tribunal has noted the misspelling of Mr Matlejane’s name in the chief’s messenger’s letter.  Considering all the evidence the Tribunal does not regard that as a significant problem.

3. In relation to whether Mr Matlejane had any children, the Tribunal notes that the chief’s messenger’s letter states merely that he was a bachelor.  Ms Majalle deposed however that the chief’s messenger confirmed to her what villagers also told her – that Mr Matlejane had no children.  That evidence does not have great weight, but it has some weight in Ms Phohleli’s favour.    

4. While there was consistent evidence that Ms Phohleli has only one sibling, Patricia, Ms Majalle spoke about a child who died many years ago.  The Tribunal accepts that Ms Phohleli never knew anything about that sibling.  On the other hand, it is in Ms Phohleli’s favour that there are notes on the Department’s file that indicate that Ms Phohleli’s mother independently gave consistent information to the Department that she has two children[2].  

   [2] Folio 39 of Department’s file

5. The Tribunal has referred to two birth certificates – one issued in 1992; the other in 2015.  The format is different, the second one being, unsurprisingly, of more modern appearance.  Both documents contain the same essential information.  Neither contains details of the father.  The main differences are the name of the informant and the place of the mother’s residence.  The differences were explained at the hearing more or less on the basis that it was Ms Phohleli’s grandmother who applied for the first birth certificate whereas it was Ms Phohleli’s mother who applied for the second birth certificate and that they had different places of residence.  Whatever may be said about that, the Tribunal does not consider that its ultimate conclusion is affected.    

6. In summary, on the basis of the whole of the evidence before it, the Tribunal makes the following findings.  Ms Phohleli is the daughter of Konosoang Augustine Phohleli who is an Australian citizen usually resident in Australia.  As at the date of the visa application Ms Phohleli had only one sibling, her step-sister, Patricia, and that her biological father, Mr Matlejane, died before Ms Phohleli applied for the visa without having had any other children. 

7. Having made these findings, the Tribunal considers the specific requirements of the Regulations. 

8. The visa application was made on the basis that Ms Phohleli is the remaining relative of Konosoang Augustine Phohleli, who she claims is her Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined (which includes parent), or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

9. In this case Konosoang Augustine Phohleli is Ms Phohleli’s mother and is an Australian citizen and therefore an Australian relative for these purposes.

   Is the applicant a remaining relative of an Australian relative?

10. To be granted a Subclass 835 visa the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.835.212 and cl.835.221. ‘Remaining relative’ is defined in r.1.15 of the Regulations, which is set out in the attachment to this decision.

11. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant and is ‘usually resident in Australia’.

12. The applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia - those that are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens: r.1.15(1)(c).  Additional provisions apply if the applicant is an adopted child: r.1.15(1)(d). 

13. ‘Near relative’ for these purposes is defined in r.1.15(2) of the Regulations and means a person who is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the applicant or of their spouse or where relevant, de facto partner. It also includes a child, or step-child, of the applicant or their spouse or de facto partner who either: has turned 18 and is not a ‘dependent child’; or has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or their spouse or partner.

14. On the basis of the whole of the evidence before it, the Tribunal finds that Ms Phohleli does not have any near relatives except her mother and Patricia – that is, those relatives who are usually resident in Australia and are Australian citizens.  Accordingly, the Tribunal is satisfied that there are no near relatives other than those permitted by the Regulations.  Therefore r.1.15(1)(c) is met.

15. For the reasons set out above, the Tribunal is satisfied that Ms Phohleli is the remaining relative of an Australian Relative at the time of application and the time of decision for the purposes of cl.835.212 and cl.835.221.  Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 835 visa.

    DECISION

16. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 835 (Remaining Relative) visa:

    ·cll.835.212 and 835.221 of Schedule 2 to the Regulations.

    John Billings
    Senior Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    1.15     Remaining relative

    (1)An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

    (a)the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and

    (b)the other person is usually resident in Australia; and

    (c)the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:

    (i)usually resident in Australia; and

    (ii)Australian citizens, Australian permanent residents or eligible New Zealand citizens; and

    (d)if the applicant is a child who:

    (i) has not turned 18; and

    (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas:

    at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

    (2)In this regulation:

    near relative, in relation to an applicant, means a person who is:

    (a)a parent, brother, sister, step-brother or step-sister of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (b)a child (including a step-child) of the applicant or of the applicant’s spouse or de facto partner (if  any), being a child who:

    (i)has turned 18 and is not a dependent child of the applicant or of the applicant’s spouse or de facto partner (if any); or

    (ii)has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant’s spouse or de facto partner (if any).