Pol (Migration)

[2018] AATA 4040

Pol (Migration) [2018] AATA 4040 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Makem Ater Pol

VISA APPLICANT:  Mr Majur Ater Pol Makem

CASE NUMBER:  1614936

DIBP REFERENCE(S):  2015075035

MEMBER:Kira Raif

DATE:28 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2018 at 11:40am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – DNA testing – half-sibling – incorrect name and date of birth – application completed by another – self-reported age documents – schooling records – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2 cls 117.211, 117.221

CASES
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 25 August 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958.

2. The visa applicant is a national of South Sudan and claims to have been born in April 1998. The visa applicant applied for the visa on 15 April 2015. The delegate refused to grant the visa because the applicant did not meet cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the 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 27 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dinka and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time of the application, 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. 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, 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. 

   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 a half-sibling of the sponsor. The delegate notes that in his own visa application made in 2003, the sponsor did not declare the applicant as his sibling. The review applicant explained to the Tribunal that at that time he was unaware of the visa applicant’s existence. The applicant provided with this application the results of the DNA test confirming the half-sibling relationship between the applicant and the sponsor and copies of these results have also been provided to the Tribunal. On the basis of this evidence, the Tribunal accepts that the visa applicant is a half sibling, and a relative, of the sponsor.

9. The applicant must be under the age of 18 at the time the application was made. The delegate notes that since this sibling was not declared by the sponsor in his own visa application, his date of birth was not recorded. The delegate refers to the sponsorship for a Partner visa made by the sponsor in 2011. In that application the visa applicant was listed as the sponsor’s brother, however his date of birth was given as 10 May 1996. In the present application the visa applicant claims to have been born on 3 April 1998. As the application was made in 2015, the earlier date would render the visa applicant over the age of 18 at the time of the application and the later date would indicate the applicant was 17 years of age when the application was made.

10. In 2015, following an FOI request, the sponsor provided a declaration in which he stated that the visa applicant’s name and date of birth were incorrectly recorded in his partner’s visa application. The sponsor claims that the visa applicant was born in 1998 and the form incorrectly states 1996. The visa applicant states that the papers were completed by a relative and he could not explain the discrepancy. In oral evidence to the Tribunal the review applicant said that the application was completed by his brother-in-law who had made a mistake. The review applicant said the dates were picked randomly and he was not asked these details. The Tribunal accepts the possibility of mistake when the Partner visa application was being completed, although it is not entirely clear how such a mistake could have been made, given that the information relates to the sponsor’s relative and not his partner’s and the only source of information relating to the age of the sponsor’s sibling would be the sponsor himself. Even if another person filled in the forms, he would have done so on the basis of the information supplied by the sponsor, insofar as the information related to the sponsor’s relatives and the Tribunal does not accept the review applicant’s evidence that the date of birth was picked entirely randomly.

11. The review applicant told the Tribunal that the person who completed the form did not know English well. In the Tribunal’s view, that person’s English was sufficient to provide answers on the application form, as such answers were recorded, and there is no reason why that person would have any difficulty understanding one particular question about the visa applicant’s date of birth. A response was recorded to that question and the review applicant’s real objection is to the actual date provided, rather than with the claimed lack of understanding of the question. The Tribunal is also of the view that as the sponsor, the review applicant had some responsibility to ensure the information provided in that application was correct and he may have been required to sign a declaration that the information that was supplied was correct and accurate. The review applicant claims he left everything for another person to do and he was not involved but he would have been required to sign the forms and the Tribunal does not accept the review applicant had so little involvement with that application as he now claims.

12. As noted above, the Tribunal accepts that it is possible that a mistake was made in relation to the visa applicant’s date of birth in the Partner visa application made in 2011. However, it is also possible, in the Tribunal’s view, that the initial date of birth, 1996, was the correct one and that once the parties decided to proceed with the Orphan Relative application for the visa applicant, that date had to be changed so that the visa applicant would be under the age of 18 at the time of the application. There is no reason why the evidence in the present application concerning the visa applicant’s date of birth should be preferred to the evidence in the Partner visa application and indeed, the evidence in the Partner visa application may be more probative because there was no benefit to anyone at that time to alter the visa applicant’s date or birth.

13. At times, a child’s schooling records could support claims concerning the child’s age. The Tribunal questioned the review applicant about the visa applicant’s schooling. The review applicant told the Tribunal that the visa applicant started school in 2013 and did not do any formal schooling prior to that date. The Tribunal noted that the primary application was accompanied by school reports dated 2012 which refer to the visa applicant being in Class 7. The review applicant then said that his brother started school in 2012, then gave up because he could not pay for it, and he started school again in 2013. That contradicts the review applicant’s earlier evidence that his brother did not attend school before 2013 and also the school reports which refer to the visa applicant being in Class 7 in 2012 and Class 8 in 2013. The indication of the visa applicant’s class would suggest that he started schooling around 2005. The review applicant suggested that his brother was placed at that level and he does not know how the schools operate but the Tribunal considers that explanation implausible. If the visa applicant had no formal schooling until 2012, as the review applicant claims, the Tribunal does not accept that he would start formal schooling from Class 7. The Tribunal has formed the view that the review applicant’s explanations about the visa applicant’s schooling have not been truthful.

14. The Tribunal considers the issue of the visa applicant’s schooling to be related to the issue of his age. In the Tribunal’s view, the review applicant’s lack of candour with respect to the visa applicant’s schooling signifies his lack of candour in relation to his brother’s age. 

15. The Tribunal acknowledges that the visa applicant presented other documents relating to his age, including the Age Assessment Certificate and the Nationality Certificate which refer to his date of birth and the visa applicant also holds a passport. The review applicant explained to the Tribunal that when he applied for his brother’s passport, he had to obtain these documents.  The review applicant said that he told the government agencies what his brother’s date of birth was on the basis of what the person who was looking after his brother told him and that is how it was recorded. The review applicant’s evidence indicates that the information on these documents was recorded on the basis of self-reporting by the review applicant or the visa applicant or others rather than any independent inquiries or verification or any independent information held by the agencies. The review applicant told the Tribunal there are no birth certificates in Sudan. In such circumstances, the Tribunal does not consider the official documents with the visa applicant’s date of birth as being reliable as these are based on a self-reported date of birth. In the circumstances of this case where the documents were obtained for visa purposes, the Tribunal considers such self-reporting to be self-serving. The review applicant claims that incorrect information concerning the visa applicant’s age was previously incorrectly recorded in the Partner visa application so the Tribunal does not consider any record of birth reported by parties and not based on probative documentary evidence to be probative or persuasive. The Tribunal acknowledges the review applicant’s evidence that he relied on the information supplied by another person but in the Tribunal’s view, that is not sufficient.

16. Overall, the Tribunal finds that conflicting evidence about the visa applicant’s date of birth has been submitted. The review applicant’s Partner visa application (as referred to in the primary decision record) refers to the visa applicant’s date of birth as 1996. The present application refers to his date of birth as 1998. The schooling records which may be used to determine age or support a claim about a child’s age, are questionable as they appear to be entirely inconsistent with the review applicant’s oral evidence that the visa applicant did not attend school at all before 2012 or 2013. The Tribunal has formed the view that the other official documents referring to the date of birth are unreliable because the date of birth is recorded based on self-reporting. In such circumstances, the Tribunal is not satisfied the visa applicant was born in 1998. The Tribunal is not satisfied the visa applicant was under the age of 18 when the visa application was made. He does not meet the definition of ‘orphan relative’ in r. 1.14. The Tribunal is not satisfied the visa applicant meets cl. 117.211(1).

17. 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 the visa applicant has been adopted by the review applicant. The Tribunal is not satisfied that the visa applicant meets cl. 117.211(b) and cl. 117.211. He does not meet cl. 117.221.

18. Having made that finding, it is not necessary for the Tribunal to consider whether the visa applicant can be cared for by his parents.

19. There is no suggestion that the visa applicant is a child or an adopted child of the review applicant. He does not meet the requirements for the grant of the Subclass 101 and Subclass 102 visas.

    Conclusion

20. For these reasons, 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

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

    Kira Raif
    Senior Member