Sibhatu (Migration)

[2020] AATA 200

Sibhatu (Migration) [2020] AATA 200 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Meskela Sibhatu

VISA APPLICANT:  Mr Filmon Sibhatu

CASE NUMBER:  1802164

DIBP REFERENCE(S):  OSF2017/015234

MEMBER:Ann Duffield

DATE:5 February 2020

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 05 February 2020 at 10:19am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ – age – relationship to sponsor – paternal aunt – inconsistence evidence in previous visa application – DNA test results – no parental care – applicant’s father not deceased – decision under review affirmed

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

CASES
Nguyen v MIMA (1998) 158 ALR 639

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 23 November 2017 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 applied for the visa on 2 January 2018. 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.

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.

4. 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 that the applicant was a relative of the sponsor as defined in Regulation 1.14.

5. The review applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

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

   BACKGROUND

7. The parties provided the Tribunal with a copy of the delegate’s decision along with the application for review.

8. The visa applicant is a citizen of Eritrea born on 15 November 1999 (20 years old). He currently resides in Sudan.

9. The sponsor and review applicant is an Australian citizen born on 20 August 1979. The sponsor claims to be the paternal aunt of the visa applicant. The visa applicant’s father is her brother.

10. The sponsor claims that the applicant’s father and mother are missing and their whereabouts are unknown. She also claims that the applicant has been looked after by his grandmother after his mother disappeared in 2009.

11. The sponsor previously applied to sponsor her brother to Australia on a subclass 202 visa but it was refused in August 2010. Department records show that the sponsor’s brother is married to someone else other than the visa applicant’s mother and he has two half-siblings. Also in that application, the visa applicant’s father did not declare the visa applicant as a dependent, only naming two of his other children.

12. The sponsor has provided copies of six receipts indicating that she sent the visa applicant some money in 2016. There is also a copy of the visa applicant’s baptism certificate on file. There are no birth certificates or death certificates or any other documentation or statements, apart from those mentioned, to support the parties’ claims.

13. In an interview with the Department the visa applicant claimed that he had no siblings and had never met his father. He claims his mother just left home one day when he was around 10 years of age and never returned. He went to live with his grandmother who never told him why his mother left. The visa applicant told the Department that he only had two Aunts in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the visa applicant is a relative of the sponsor.

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

15. 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.

16. ‘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, who claims to be the visa applicant’s paternal aunt is the relevant Australian relative.

17. 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)

18. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicant was born on 15 November 1999 and is therefore over twenty years old at the time of this decision. At the time of application on 2 January 2018 the applicant was 19 years old. Accordingly r.1.14(a)(i) was not met at the time of application and continues not to be met at the time of decision.

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

19. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence before the Tribunal that the applicant has had or currently has a de facto partner or spouse within the meaning of the Migration Act. 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)

20. 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.

21. The sponsor is an Australian citizen by grant in 1999. She claims to be the paternal aunt of the applicant. However in her sponsorship application for her brother (the visa applicant’s alleged father) in 2009, the visa applicant was not included as a dependent child. Two other children were included, but not the applicant.

22. When questioned about this at the hearing the sponsor claimed that her brother never told anyone about his relationship with her nephew’s mother. She said that she only found out about her nephew when he was left at her mother’s house. Asked how she could possibly form a view that the child was in fact her nephew when a strange woman that no one knew about arrived claiming that the child was her brother’s. The sponsor said that she believed that the visa applicant was her brother’s son. The Tribunal put to the sponsor that there was no evidence to support such a claim apart from her belief. The sponsor has not even met the visa applicant.

23. The parties were unable to provide either the Department or the Tribunal with a copy of the visa applicant’s birth certificate.  The sponsor said that no one in Eritrea had birth certificates and that baptismal certificates were relied upon.

24. The sponsor told the Tribunal that no-one in the family was aware that the sponsor’s brother had a third child, or who the mother of that child was. The fact that he was not included in his alleged father’s application as a dependent child was leading the Tribunal to form a view that the applicant and the sponsor are not related in the meaning of the Act.

25. Given the paucity of evidence and a certain failure of the sponsorship without relevant evidence, the parties insisted that they be permitted to provide DNA evidence. The Tribunal put to the parties that evidence of the relationship was not sufficient in itself to meet the necessary criteria. However upon the parties’ insistence the Tribunal agreed to allow the parties to obtain DNA evidence to prove the relationship.

26. On 3 February 2020 the Tribunal received the results of the DNA testing which indicates that the sponsor is most likely the aunt of the applicant. The Tribunal accepts that the applicant and the sponsor are related within the meaning of r.1.14 of the Regulations.

27. 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)

28. 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.

29. The applicant’s father is still alive although the parties maintain that he deserted the applicant to live with his new family when the applicant was at “a very young age”. He claims that his mother left him when he was 10 years of age and he was thereafter raised by his grandmother. He claims he fled to the Sudan at the age of 16 and his grandmother is now elderly and unable to properly support the applicant.

30. The applicant’s father was supported for migration to Australia by the sponsor under the humanitarian program in July 2009. It is evident therefore that at least the sponsor was in contact with the applicant’s father at the time that the applicant claims that he went missing and the statement she made in relation to the whereabouts of her brother were incorrect and misleading at the time she made them.

31. The applicant has been supported by members of his family, or others, but not the sponsor since the age of 10 years. Since the age of 16 years when he allegedly fled to the Sudan on his own, he has also either supported himself or been supported by others, but not the sponsor with the exception of some funds that she sent to him in 2016.

32. The applicant’s father is not deceased and there is evidence before the Tribunal indicating that the sponsor and possibly even the applicant were aware of this fact at the time the application was made. There is no evidence before the Tribunal that the applicant’s mother is deceased and given the unreliability of the sponsor’s evidence the Tribunal cannot also be satisfied that the applicant’s mother has not had some role in his upbringing.

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

    Best interests – r.1.14(c)

34. 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 applicant. The visa applicant is 20 years old and has, for better or worse, been independent since he was 16 years of age. His sponsor has provided him with financial support for one year. He is an adult and hence the considerations of CROC are not, in any case, relevant in his case.  Accordingly, r.1.14(c) 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?

35. 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 before the Tribunal that the applicant was or has subsequently been adopted by the sponsor.

36. Accordingly, cl.117.211(b) is not met, and continues not to be met at the time of decision.

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

38. 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.

    CONCLUSION

39. 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

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

    Ann Duffield
    Senior 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.