Siyum (Migration)

[2018] AATA 5713

Siyum (Migration) [2018] AATA 5713 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Tiberth Siyum

VISA APPLICANT:  Ms Risti Tegegne Mulu

CASE NUMBER:  1616213

DIBP REFERENCE(S):  OSF2016/030301

MEMBER:Kira Raif

DATE:3 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 03 December 2018 at 8:03am

CATCHWORDS
MIGRATION – Child (Migrant)(Class AH) visa – Subclass 117 (Orphan Relative) –orphan relative of Australian relative – evidence that the sponsor has been providing financial and emotional support to the visa applicant for a number of years – custody arrangements – decision under review remitted

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

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 22 August 2016 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 is a national of Ethiopia born in December 1999. She applied for the visa on 11 April 2016. The delegate refused to grant the visa because the applicant did not meet cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant was an orphan relative of her Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 28 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from review applicant’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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. 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. 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. It indicates that the visa applicant claims to be a niece of the sponsor. However, the primary decision record indicates that the sponsor did not declare any siblings in her own visa application and stated that she is the only child of her mother. Further, the visa applicant did not provide her mother’s and the sponsor’s birth records to prove the relationship. As such, the delegate was not satisfied the visa applicant was a relative of the sponsor.

8. The visa applicant claims that her father passed away in 2002 and her mother passed away in 2007 and she submitted death records. The delegate notes that these records are copies that have not been certified and were issued in 2016, many years after the claimed deaths. The delegate determined that that these could be given little weight. The applicant also presented with her application a Court order issued in January 2016 providing the sponsor with her custody. However, it is not apparent that the court had undertaken any independent verification of the claimed deaths of the visa applicant’s parents before issuing the order and the Tribunal is mindful that custody can be granted in circumstances other than the death of the parents, for example, if the parents are unwilling to take care of the child or unable due to reasons other than incapacity. The Tribunal does not consider that the custody arrangements on their own are sufficient to evidence the parents’ deaths.

9. In oral evidence to the Tribunal, the review applicant conceded that she did not disclose any siblings in her own visa application, stating that she was not aware and had no understanding. The review applicant offered to undertake DNA test to prove the relationship. On 30 November 2018 the Tribunal received the results of the DNA test which indicate that the statistical likelihood of an aunt – niece relationship between the visa applicant and the review applicant is 726 to 1 and that there is a ‘strong’ support for the proposition that such a relationship exists. On the basis of that evidence, the Tribunal accepts that the visa applicant is the niece of the sponsor and a relative of the sponsor.

10. The visa applicant was born in 1999 and the application for the visa was made in 2016. The Tribunal finds that the visa applicant was under the age of 18 when the application was made. There is no evidence that the applicant has a spouse or de facto partner. The Tribunal has found that the visa applicant is a relative of the sponsor. The Tribunal is satisfied the visa applicant meets r. 1.14(a).

11. With respect to the parents’ deaths, the review applicant told the Tribunal the death certificates were issued in 2016, the review applicant said her family lived in a remote or rural area and they do not use death certificates. When she was asked to provide death certificates, she obtained these documents, otherwise there is no need for death records. The review applicant said the community know each other and the people in the church arranged the burials and would be familiar with their deaths. The Tribunal would consider such contemporaneous evidence more probative than death certificates issues more than ten years after the events.

12. The review applicant was uncertain of the circumstances of the parents’ deaths, other than to state that they were sick and died. She did not know what illness they had and when they passed away. She said they were buried in Ethiopia.

13. The review applicant and her daughter explained to the Tribunal that they would not make such claims if they were untrue but the Tribunal does not consider this to be a persuasive argument, particularly in light of the fact that the review applicant failed to declarer her sister in her own visa application. They also suggest that they have been providing financial support to the visa applicant and that indicates she is the niece. The Tribunal does not accept that this is so, since they could provide financial support for any number of reasons and to any type of relative.

14. The review applicant subsequently provided to the Tribunal a statement from the local diocese council administrator confirming the parents’ deaths.  

15. The Tribunal considers the evidence of the parents’ deaths to be minimal. The Tribunal shares the delegate’s concerns about the death certificates, given that these were issued more than ten years after the event and without apparent verification. The statement from the church is dated May 2018 and was clearly issued in support of the visa application. Nevertheless, the Tribunal acknowledges the review applicant’s evidence that death records are not normally obtained in that local area as there is no need for them and the Tribunal accepts that in such circumstances, the death records would not be contemporaneous. Having regard to the totality of evidence before it, including the review applicant’s oral evidence, the death certificates, statement from the church and the guardianship documents, the Tribunal is satisfied, on balance, that the visa applicant’s parents have passed away.  The Tribunal finds that the visa applicant cannot be cared for by her parents because each of them is deceased. The Tribunal is satisfied, on balance, that the visa applicant meets r. 1.14(b).

16. There is evidence before the Tribunal that the sponsor has been providing financial and emotional support to the visa applicant for a number of years. She has expressed her willingness to continue to do so. There are custody arrangements that have been put in place. The Tribunal is satisfied there are no compelling reasons to believe that the grant of the visa would not be in the best interests of the visa applicant. She meets r. 1.14(c).

17. The Tribunal finds that the visa applicant is an orphan relative of the sponsor. She meets cl. 117.211 and cl. 117.221.

    Conclusion

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

19. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member