Sada (Migration)

[2018] AATA 2720

Sada (Migration) [2018] AATA 2720 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Toyi Sada

VISA APPLICANTS:  Mr Mariki Hamadi Ciza
Ms Nkurikiye Azza Hamadi
Miss Naima Bukuru Hamadi
Miss Habiba Hamadi
Mr Hamadi Alfati
Mr Nyota Hamadi
Mr Mussa Hamadi
Miss Zubeda Hamadi

CASE NUMBER:  1719390

DIBP REFERENCE(S):  OSF2015/074855, OSF2015074856, OSF2015/074857, OSF2015074858, OSF2015074859, OSF2015074860, OSF2015074861, OSF2015074862.

MEMBER:K. Chapman

DATE:21 June 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that all named visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations;

·cl.117.221 of Schedule 2 to the Regulations; and

·cl.117.224 of Schedule 2 to the Regulations.

Statement made on 21 June 2018 at 3:27pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Whether the visa applications are orphan relatives of an Australian relative – Whether the visa applicant’s parents are either dead, permanently incapacitated or of unknown whereabouts – Contemporary evidence of parent’s death provided – Other requirements of visa complied with – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.211, 117.221, 117.224

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 20 June 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicants applied for the visas on 3 February 2015. At that time, 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 visa applications are sponsored by the aunt of the visa applicants, Mrs Toyi Sada. She is the review applicant in this matter.

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, cl.117.221 and cl.117.224. The term ‘orphan relative’ is defined in r.1.14.

4. The delegate was not satisfied that the parents of the visa applicants are deceased or that an Assurance of Support had been accepted in relation to these applicants. Accordingly, the delegate refused the visa applications determining that the requirements of cl.117.211, cl.117.221 and cl.117.224 were not satisfied. On 25 August 2017, the review applicant applied for review of the visa refusal decisions, providing a copy of such decisions with her application. The Tribunal has conducted a combined review of the eight visa refusal decisions.

5. On 2 February 2018, the Tribunal wrote to the review applicant, pursuant to subsection 359(2) of the Act, inviting her to provide further information in support of the claims that the parents of the visa applicants are deceased, that each visa applicant is the orphan relative of the visa sponsor, and information in relation to whether Assurances of Support have been accepted by the Secretary of Social Services. On 13 February 2018, the review applicant submitted copies of Assurance of Support correspondence dated 7 August 2017 in relation to each of the visa applicants. The Tribunal subsequently received from the review applicant material including telephone records, financial receipts, third party Statutory Declarations, translated extracts from Burundian Government records pertaining to the deaths of the parents of the visa applicants, photographs and educational records. The aforementioned material has been duly considered by the Tribunal.

6. The review applicant appeared before the Tribunal on 5 June 2018 to give evidence and present arguments. The Tribunal also took oral evidence in person from Mr Ibrahim Kharimu (step-son of the review applicant) and by telephone from Mr Athumani Amrani (husband of the review applicant) who is visiting the visa applicants in Burundi. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurundi and English languages. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing.

7. For the following reasons, the Tribunal has concluded that all of the decisions under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the present case are whether each visa applicant is an ‘orphan relative’ of the review applicant at the time of application and the time of decision. Additionally, the Tribunal must examine whether Assurances of Support have been accepted by the Secretary of Social Services in relation to each visa applicant.

   Are the visa applicants orphan relatives of an Australian relative?

9. Clause 117.211 requires that at the time of application each 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 applicants 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.

10. ‘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, who is the aunt of the visa applicants, is the relevant Australian relative. The review applicant is an Australian citizen.

11. For the reasons below, each visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, each visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is met and continues to be met at the time of this decision.

    Age – r.1.14(a)(i)

12. Regulation 1.14(a)(i) requires that each visa applicant has not turned 18. At the time of application, each visa applicant was under the age of 18 years. Two of the visa applicants are now aged 18 years, with the remainder being under that age. Accordingly, r.1.14(a)(i) was satisfied by all visa applicants at the time of application. Six of the visa applicants continue to satisfy this requirement at the time of decision and two do not, but only because they have now turned 18 years of age.

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

13. Regulation 1.14(a)(ii) requires that each visa applicant does not have a spouse or de facto partner. There is no evidence before the Tribunal to suggest that any of the visa applicants had a spouse or de facto partner at the time of application. Nor is there any evidence to suggest this is the case at the time of decision. Accordingly, r.1.14(a)(ii) was satisfied by all of the visa applicants at the time of application and continues to be satisfied by them at the time of decision.

    Relative – r.1.14(a)(iii)

14. Regulation 1.14(a)(iii) requires each 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.

15. The review applicant is an Australian citizen. The visa applicants are the children of the review applicant’s brother. DNA testing conducted during 2016 confirms that the visa applicants are biological siblings. Seven of the visa applicants indicate genetic dispositions strongly aligned with the review applicant. One of the visa applicants has a less pronounced genetic link with the review applicant, however explanatory notes from the DNA testing facility of 17 February 2017 satisfy the Tribunal that this child is definitely related to the other visa applicants. Having carefully considered the DNA testing results, the Tribunal is satisfied they confirm to the required standard that the review applicant is the aunt of each of the eight visa applicants. Accordingly, r.1.14(a)(iii) was satisfied by all of the visa applicants at the time of application and continues to be satisfied by them at the time of decision.

    No parental care – r.1.14(b)

16. Regulation 1.14(b) requires that each visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The review applicant contends that both parents of each visa applicant were killed in a motorcycle accident in Burundi on 16 June 2012. She submitted translated extracts of death certificates with the visa applications. The delegate did not accept these records as evidence of the deaths given they were extracts and not actual death certificates and were issued in 2014.

17. The Tribunal received oral evidence from the review applicant, Mr Ibrahim Kharimu and Mr Athumani Amrani indicating that the parents of the visa applicants were killed in a motorcycle accident on 16 June 2012. Their oral evidence consistently described that one parent had fallen ill, with the other conveying them to medical attention, when the accident occurred. A neighbour of the visa applicants rung the review applicant to advise of the deaths. The neighbour, funded by the review applicant and members of the local Burundian community, has looked after the children ever since. That neighbour has her own children and as she ages it is becoming harder for her to care for the visa applicants. The oral evidence received by the Tribunal also consistently advised of a commemoration service held in Australia by the Burundian community to mark the deaths of the parents. There was no need to obtain records at the time of these deaths. The Tribunal has also received third party Statutory Declarations consistent with the aforementioned information provided in oral evidence.

18. Mr Amrani, who is presently visiting Burundi, also gave oral evidence indicating the deaths are recorded in an official Register located in a local Government office. He visited that office and took photographs of the entries in the Register noting the deaths of the parents. Translations of these photographs corroborate that the deaths of the parents were recorded by the Civil Government Registrar at Ruyigi. Both Mr Amrani and Mr Kharimu indicated they have separately visited the burial site of the parents. Photographs have been submitted to the Tribunal consistent with those accounts. Translated correspondence dated 13 February 2018 from Mr Dieudonne Citegetse, the Civil Registrar of the Municipality of Ruyigi (Ministry of the Interior), confirms the extract death certificates drawn from the records of the Municipality are ‘legal and authentic.’ Written submissions dated 21 February 2018 refer to country information from the Immigration and Refugee Board of Canada, and UNICEF, indicating that deaths in Burundi are recorded under a system of civil registration, with Civil Registrars being responsible for issuing certified true excerpts of certificates listed in the registers of the office. The aforementioned documentary evidence points strongly towards the conclusion that both parents of each visa applicant passed away on 16 June 2012.

19. The Tribunal notes that references on behalf of the review applicant suggest that her own children are making an exemplary contribution to the Australian community, well supported by her parenting and that of her husband. Their older children are pursuing tertiary studies or are gainfully employed. Mr Kharimu is employed in two positions himself. He has been accepted by Centrelink as financially able to meet the Assurance of Support obligations in relation to the eight visa applicants. The younger children of the review applicant are successfully pursuing their schooling. The Tribunal had the opportunity to take oral evidence from the review applicant, her husband and Mr Kharimu. They impressed the Tribunal as witnesses of truth. The Tribunal is further satisfied that the review applicant and her family are respected members of the Australian community.

20. Following careful consideration, the Tribunal is satisfied that the evidence submitted by the review applicant pertaining to the deaths of the parents of the visa applicants is true and correct. The Tribunal notes that the review applicant has gone to great lengths to furnish the Tribunal with relevant documentary evidence from Burundi. The Tribunal also notes that no inspection of the relevant Civil Register of the Municipality of Ruyigi was conducted by the Department. The Tribunal must make its decision upon the best evidence available and having accepted the credibility of the witnesses, it also accepts the genuineness of the documentary evidence submitted by the review applicant in this particular case. Accordingly, the Tribunal finds that r.1.14(b) was satisfied by all of the visa applicants at the time of application and continues to be satisfied by them at the time of decision.

    Best interests – r.1.14(c)

21. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicants. The oral evidence of the review applicant, her husband and Mr Kharimu indicates that the visa applicants are living in poor conditions in Burundi. Contemporary photographic evidence was submitted to the Tribunal confirming this to be the case. Further, the review applicant advised of plans for her older children to move out of her residence in Australia to accommodate the visa applicants should they be granted visas to reside in this country. Photographic evidence of the review applicant’s residence confirms that living conditions with her in Australia are far superior to those currently experienced by the visa applicants. Third party statements and financial records confirm that schooling arrangements are in place for the visa applicants and that the review applicant will be able to take care of them, particularly with the financial support of her adult children. Following careful consideration of the evidence, the Tribunal is satisfied that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicants. Accordingly, the Tribunal finds that r.1.14(c) was satisfied by all of the visa applicants at the time of application and continues to be satisfied by them at the time of decision.

22. Given the findings above, cl.117.211 is satisfied by each of the visa applicants. Further, the Tribunal finds that six visa applicants continue to satisfy the criterion in cl.117.211 and two do not, but only because they have now turned 18 years of age. It follows that cl.117.221 is satisfied by all of the visa applicants.

    Have Assurances of Support been accepted by the Secretary of Social Services?

23. Clause 117.224 requires that, if requested by the Minister (or delegate), Assurances of Support in relation to each visa applicant have been accepted by the Secretary of Social Services. The review applicant submitted correspondence from Centrelink dated 7 August 2017 confirming an Assurance of Support from Mr Kharimu has been accepted in relation to each visa applicant. Accordingly, each visa applicant satisfies the requirements of cl.117.224.

24. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

    DECISION

25. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that all named visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations;

    ·cl.117.221 of Schedule 2 to the Regulations; and

    · cl.117.224 of Schedule 2 to the Regulations.

    K. Chapman

    
    

    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.