Shabani (Migration)

[2021] AATA 1874

Shabani (Migration) [2021] AATA 1874 (14 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Amisa Rajabu Shabani

VISA APPLICANT:  Mr Nganga Rajabu

CASE NUMBER:  1900974

DIBP REFERENCE(S):  OSF2016/076006

MEMBER:Adrienne Millbank

DATE:14 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 14 April 2021 at 9:56am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relatives of the sponsor – no parental care – applicant’s mother’s death – death certificate – financial assistance to the applicant’s family – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

EC v MIMIA [2004] FCA 978

Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 6 November 2018 to refuse to grant the visa applicant (the applicant) a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958.

2. The applicant is a citizen of the Democratic Republic of Congo (DRC). He was born on 6 July 2011 and was five years old at the time of application and nine years old at the time of decision. The review applicant and sponsor (the sponsor) is his maternal aunt. The sponsor first arrived in Australia on 3 December 2012 on a Partner (Provisional) (Subclass 309) visa. She was granted a Partner (Migrant) (Subclass 100) visa on 12 March 2015.

3. The applicant applied for the visa on 21 December 2016. His sister, three years old at the time of application and eight years old at the time of this decision, also lodged an application, at the same time, for a Child (Migrant) (Class AH) visa, sponsored by the sponsor. That application was refused on 7 November 2018.

4. At the time of 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.

5. 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. This requires that the applicant : (a) is an orphan relative of an Australian relative of the applicant; or (b) is not an orphan relative only because the applicant has been adopted by the Australia relative. An ‘orphan relative’ is defined in r.1.14 as follows:

   Reg.1.14

   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.

6. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations. The delegate found the applicant did not meet the requirements of r.1.14(b). Inconsistent claims (set out in the decision record and summarised in the two paragraphs below) were made about the applicant’s mother’s claimed death, which led to the delegate not being satisfied that the applicant’s mother is, in fact, deceased.

7. In a statutory declaration declared on 19 November 2016 provided to the Department, the sponsor claimed that the applicant’s mother passed away in 2013 ‘following an illness’. In another statutory declaration declared on 29 May 2017 provided to the Department, the sponsor claimed that: on an unknown date in 2013 the applicant’s mother was attacked by soldiers; [specific details deleted]; some passers-by took the applicant’s mother to hospital where she died four hours later; and the reason the soldiers [attacked the applicant’s mother] was because, while living in the military camp with her de facto and her children, she started an organisation called ‘Girls Standup’, which encouraged girls to attend school rather than engaging with the military.

8. In both statutory declarations, the sponsor declared that the applicant’s mother’s death certificate was issued by the hospital to her husband, the applicant’s father, but it could not be provided because it was destroyed in a grenade attack on their home by troops on 14 July 2014, in which the applicant’s father died. A death certificate for the applicant’s mother was, however, subsequently provided to the Department. It had an issue date of 12 February 2013, was purportedly issued by Dr Paluku Richard at Nundu Hospital, and certified that the applicant’s mother died on 9 February 2013 following a ‘short disease (cerebral malaria)’. That death certificate comprised one sentence and provided no other cause of death.

9. The sponsor appeared before the Tribunal on 7 April 2021 to give evidence and present arguments. The hearing was a joint hearing at which the case of the applicant’s brother was also heard. The hearing type was intended to be MS Teams video, but because of technical problems it was changed, before commencement, with the agreement of the sponsor, to a phone hearing. The line on the only number provided appeared to drop out several times during the hearing, but the Tribunal was able to re-establish contact with the sponsor. The sponsor confirmed, before the conclusion of the hearing, that she had provided all of the oral testimony she wished to.

10. The Tribunal also received oral evidence from the sponsor’s husband, her authorised recipient. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

    Is the visa applicant an orphan relative of an Australian relative?

13. 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.

14. ‘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 sponsor, the applicant’s aunt, a permanent resident, is the relevant Australian relative.

15. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is not met, and continues not to be met at the time of decision.

    Age – r.1.14(a)(i)

16. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. A DRC birth certificate, issued in Nundu on 10 July 2011, was provided, certifying that the applicant was born in the Nundu Hospital on 6 July 2011. At the time of application, he was five years old, and, as noted, he is nine years old at the time of this decision.  Accordingly, r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.

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

17. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. As noted, the applicant was five years old at the time of application and is nine years old at the time of this decision. He is below the legal age of marriage, 18 years, in DRC. The Tribunal is satisfied that the applicant did not have a spouse or de facto partner at the time of application or decision.  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)

18. 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.

19. The Tribunal accepts that the applicant is a nephew of the sponsor, who is a permanent resident usually resident in Australia. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

20. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

21. A DRC death certificate was provided to the Department at the time of application, issued by Ebeka Hospital on 16 July 2014, certifying that the applicant’s father died on 14 July 2014 from grenade fragment wounds.

22. A further DRC death certificate for the applicant’s mother, purportedly signed and issued by Dr Paluku Richard at Nundu Hospital on 20 February 2013, was provided to the Tribunal. This is in the form of an autopsy report, and is titled ‘Anatomopathological Consultation’. It again certifies that the applicant’s mother died on 9 February 2013 following a short disease (cerebral malaria). However, in this report, Dr Paluku Richard adds:

    But I also want to inform you that the same lady was threatened in her home and seriously wounded by people armed with [weapons]. [Details deleted].

    The reason for this situation was that this lady had created an association named ‘GIRL STANDING’, whose purpose was to make girls more conscious of the fact that they were entitled to go to school and to forbid their integration into the army. This is why this lady was subjected to threats and spent more than one month being treated in our hospital in NUNDU before returning home.

    [The applicant’s mother] died on 9 February 2013 at 8.00PM for the abovementioned reason.

23. In a statutory declaration signed on 11 February 2021, provided to the Tribunal, the sponsor claimed the following in response to the delegate’s decision:

    ·When she declared in her statutory declaration signed on 19 November 2016 that her sister passed away in 2013 following an illness, she meant that her sister was sick after being attacked with [weapons];

    ·She was mistaken when she said her sister died only hours after being attacked by soldiers with [weapons]. She misunderstood what she was told over the phone. She now understands that her sister went to hospital after she was attacked but was released because she could not afford to stay any longer even though she was still very ill. She returned to her home where she later contracted cerebral malaria and died;

    ·Because of her grief over her sister’s death, the sponsor was not fully able to take in all the details during the phone call when she received the news. The attack is what really caused her sister to die, because her terrible injuries made her weak and sick and vulnerable to malaria;

    ·When she first submitted the visa applications for her nephew and niece, she did not have a copy of her sister’s death certificate because it was destroyed in the grenade attack on their house. However, she was later able to obtain a copy of the death certificate, issued on 12 February 2013, and provide it. More recently, ‘after the children’s visa applications were refused’, she was able to access a further death certificate, an autopsy report, dated 20 February 2013, which provides ‘more detail’ about her sister’s death.

24. At hearing, the Tribunal asked the sponsor how, and how often, since migrating to Australia in December 2012, she has communicated with her family in DRC. The sponsor stated that she has communicated with family members in DRC regularly since her arrival, mainly by phone. The sponsor’s husband stated that he and the sponsor provide support for the applicant and his sister, who are in a precarious situation because of instability and violence in DRC, ‘daily’. The Tribunal asked the sponsor whether she and her husband provided financial support to her sister’s household in DRC after her sister was attacked, in 2013, given the devastation this would have caused. The sponsor stated that she and her husband have provided financial assistance to the applicant’s mother’s household from the time her sister was attacked in 2013, and that they provided it in 2014, the year the applicant’s father died. No corroborative evidence was provided that any financial support was provided by the parties to the sponsor’s sister or any of her family members before 2016, the year of the lodgement of the visa applications.

25. The sponsor’s husband stated, in response to a question put to the sponsor, that the sponsor did not return to DRC to be with her sister and family after the attack, and she did not attend her sister’s funeral, because the house the sponsor and her husband were living in in Australia was broken into. The sponsor stated that the autopsy report issued on 20 February 2013 is correct, and the sponsor’s sister’s [suffered specified injuries]. She stated that she spoke to a lot of people after the attack, including a pastor and neighbours as well as her brother-in-law, and for this reason she became confused about the nature of her sister’s injuries, and whether or not her sister died from them, or died later, from malaria.

26. The Tribunal asked the sponsor when the [weapons] attack on her sister occurred. The Tribunal put to the sponsor that, given her sister’s death occurred on 9 February 2013, and, according to the autopsy report her sister spent over a month in hospital before returning home and only ‘later’ contracted the malaria from which she died, if the attack occurred ‘sometime in 2013’ as claimed, it must have occurred very early in January 2013. The Tribunal put to the sponsor that she surely would have known, from talking with her brother-in-law or with her sister following the attack, before 20 May 2017 when she signed her second statutory declaration, [what her sister’s specific injuries were]. The Tribunal further put to the sponsor that, given the horrific nature of the attack, on her own sister, it would expect her to remember, at least roughly, when it occurred. The sponsor did not respond to these observations, and did not answer the question of when the attack took place.

27. The Tribunal asked the sponsor when and why an autopsy was carried out on her sister’s body: at whose request, and at whose expense. The Tribunal put to the sponsor that given the horrific nature of the injuries her sister suffered, and her sister’s subsequently contracting cerebral malaria, there would be little dispute about the cause of death. The sponsor stated that she commissioned the autopsy because she thought her sister might have been poisoned. She stated that she paid AUD300 for the autopsy. The parties subsequently stated that they paid the hospital where the sponsor’s sister was taken and treated AUD500 ‘for everything’. No corroborative evidence was provided that the applicant’s sister was in fact attacked as described, or admitted to hospital, or that the parties paid for her stay and treatment.

28. The Tribunal asked the sponsor why, given she would have been provided with the report issued on 20 February 2013 as she had requested and paid for the autopsy, she didn’t provide a copy of it to the Department at the time of application. The Tribunal also asked the sponsor why, if the autopsy report issued on 20 February 2013 certified [the specified nature of her sister’s injuries], she declared in her statutory declaration signed on 20 May 2017, that her sister’s [injuries] were [of a different nature].

29. The sponsor did not respond to this or a number of other questions asked, and concerns raised at the hearing. There were lengthy pauses; the phone line dropped out a number of times; on a number of occasions the sponsor declined to respond at all when a question was put to her; and on a number of occasions the sponsor’s husband insisted, despite the Tribunal’s repeated requests to hear directly from the sponsor, on responding to questions put to the sponsor. No request was made and there was no information before the Tribunal to indicate that the sponsor was a vulnerable person who needed someone to speak for her. When the sponsor’s husband responded to concerns or questions that were put to the sponsor, the Tribunal provided the sponsor with an opportunity to confirm or add to the responses he provided. At times, the responses provided by the parties bore little relationship to the questions asked. The parties were not convincing witnesses, and the Tribunal did not find the testimony they provided credible. 

30. Regarding the sponsor’s reluctance to respond to questions at hearing, the sponsor’s husband stated that he and the sponsor have provided all the documents necessary for the grant of visas for the applicant and his sister. The sponsor stated that she did receive a copy of the report of the autopsy on her sister, issued on 20 February 2013. The sponsor’s husband stated that they did not obtain the autopsy report until 2017, because they didn’t need it before the applicant’s and his sister’s applications were refused. The Tribunal took this to indicate that the autopsy report was obtained for the purpose of the review, and places no weight on it.  

31. The parties stated, as noted, that they could not recall, even to the nearest month, when the attack on the sponsor’s sister occurred, for the reason that it happened so long ago. They stated, as noted, that they paid all of the sponsor’s sister’s hospital bills, but claimed they could not remember when she was in the hospital, or how long she stayed in the hospital, or how long she was at home after her stay in hospital before she died. As noted, no corroborative evidence was provided to support the stories about the claimed [weapons] attack on the applicant’s mother, or her stay in hospital. The Tribunal finds it implausible that the sponsor requested and paid for an autopsy on her sister because she suspected poisoning, but did not read the report purportedly issued on 20 February 2013, until 2017, after she signed a statutory declaration containing different information.

32. The stories provided by the parties about the applicant’s mother’s death (and autopsy) were implausible as well as inconsistent; and the further claims and explanations for the inconsistencies in the stories provided to the Department, that were provided to the Tribunal, were unconvincing.

1. The Tribunal has considered the evidence and arguments. For the reasons of the inconsistent and implausible nature of the claims and stories provided by the parties, and the unconvincing nature of their testimony, the Tribunal is not satisfied that the applicant’s mother is, in fact, deceased.

2. Accordingly, r.1.14(b) was not met at the time of application and continues not to be met at the time of decision.

   Has the applicant been adopted by the Australian relative?

3. 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.

4. The sponsor claims to be the maternal aunt of the applicant, and there is nothing before the Tribunal to suggest that the applicant has been adopted by an Australian relative. Therefore, he is not an orphan relative at the time of application and time of decision only because of adoption by an Australian relative. Accordingly, cl.117.211(b) is not met, and continues not to be met at the time of decision.

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

6. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, and this is not only because the visa applicant has turned 18. It follows that cl.117.221 is not met.

7. 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

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

   Adrienne Millbank
   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.