Thal Bay (Migration)

[2022] AATA 5238

Thal Bay (Migration) [2022] AATA 5238 (16 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rabeca Thal Bay

VISA APPLICANTS:  Mr Monday Mordit Mabaon Mayom
Mr Malok Mordit Mabaon Mayom
Mr Poryal Mordit Mabaon Mayom
Mr Kedit Mordit Mabaon Mayom
Mr Mabaon Mordit Dhelbai Mayom
Master Saba Mordit Mabaon Mayom

REPRESENTATIVE:  Mr Emete Joesika (MARN: 0100301)

CASE NUMBER:  1718051

HOME AFFAIRS REFERENCE(S):          OSF2015/075481

MEMBER:David Crawshay

DATE:16 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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 16 December 2022 at 3:42pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – age – no spouse or de facto partner – relative – nephew – no parental care – best interests – decision under review remitted

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

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 and Border Protection on 29 June 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 18 August 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.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.117.211, which requires a visa applicant to be an orphan relative of an Australian relative of that visa applicant.

4. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations. The delegate found that the visa applicants were not orphan relatives of the review applicant.

5. The review applicant appeared before the Tribunal on 7 October 2021 to give evidence and present arguments (initial hearing). The Tribunal also received oral evidence from the first-named visa applicant and from Ms Monika Yar Moshol Mothondok, who is the paternal grandmother of the parties. It became necessary to convene a second hearing (resumed hearing) on 22 March 2022 in order to, among other things, interview Ms Rebecca Wour, who was not able to be interviewed at the initial hearing, The Tribunal also interviewed Mr Rial Yak, who is the son of the review applicant. The Tribunal hearings were conducted with the assistance of interpreters in the Dinka and English languages.]

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearings.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicants were and continue to be orphan relatives of the review applicant pursuant to the Migration Regulations.

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

9. Clause 117.211 requires that at the time of application a visa applicant is an orphan relative of an Australian relative (cl.117.211(a)) or is not an orphan relative only because that visa applicant has been adopted by an Australian relative (cl.117.211(b)). A 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.

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 a 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, as the sister of the visa applicants, is the relevant Australian relative.

11. For the reasons below, the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is not met and does not continue to be met at the time of decision.

    Age – r.1.14(a)(i)

12. Regulation 1.14(a)(i) requires that an individual visa applicant has not turned 18. The Tribunal has seen copies of the visa applicants’ nationality certificates issued by the Minister of Interior in June 2014. These show that the visa applicants were all below the age of 18 at the time of application (the first-named visa applicant was claimed to be two weeks shy of his 18^th birthday). Although the certificates were issued a number of years after the visa applicants’ claimed births (17 years in the case of the first-named visa applicant), in the absence of contrary information the Tribunal gives these certificates weight. It finds that the visa applicants were all under the age of 18 at the time of application.

13. 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)

14. Regulation 1.14(a)(ii) requires that an individual visa applicant does not have a spouse or de facto partner. There is no evidence to show that any of the visa applicants has ever had a spouse or de facto partner. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision in respect of all visa applicants.

    Relative – r.1.14(a)(iii)

15. Regulation 1.14(a)(iii) requires a 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.

16. The review applicant claims that the visa applicants are the children of her deceased brother, Mr Joseph Mordit Mabuong by two different women. The visa applicants are therefore claimed to be her nephews. “Nephew” is included in the definition of “relative” in r.1.03. The Tribunal has considered the testimony of the parties at hearing and notes that it corresponds with documents submitted at the Department stage. It accepts based on this information that the visa applicants are her nephews and are therefore her relatives. Moreover, it accepts based on Department records that the review applicant is an Australian citizen.

17. 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)

18. Regulation 1.14(b) requires that a 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.

19. The claims made by the review applicant can be summarised as follows. She claims that the visa applicants are all children of Mr Joseph Mordit Mabuong, whom she claims is her brother. Ms Prisicalla Nayanajong Mading Abur is claimed to be the mother of all visa applicants except for Kedit. His mother is claimed to be Ms Adol Keluel Agar Chawul. No findings have been made by the Tribunal about whether the review applicant is Mr Mabuong’s sister or whether he is the father of the visa applicants as it is unnecessary to do so in light of the findings made below.

20. The review applicant claims that Mr Mabuong died in 2008. She claimed at the initial hearing to have heard of his death in May 2008. Elsewhere, including in a death certificate issued by the Ugandan Government on 1 November 2021, it is claimed that Mr Mabuong died in August 2008. The review applicant claims that Mr Mabuong died of a lung infection on the way from Rumbek to Kampala. She was asked at the initial hearing why a death certificate was not issued,[1] and she replied that no one bothered about it.

    [1] The death certificate from the Ugandan Government was issued and provided after the initial hearing.

21. After Mr Mabuong’s death, the review applicant claims that the visa applicants and their mothers were cared for by their paternal grandmother – the review applicant’s mother, Ms Monika Yar Moshol Mothondok.

22. At the initial hearing, the review applicant claimed that Prisicalla died from diarrhoea and extreme vomiting in December 2013. She claimed that Adol died of diarrhoea and vomiting in January 2014. When it was put to the review applicant that death certificates submitted pre-hearing stated that Prisicalla died in December 2012 and Adol in January 2013, she said that she “messed up” the years.

23. The first-named visa applicant, Monday, said at the initial hearing that the visa applicants had been living with Monika since their father passed away. He said that their father had been taken to hospital in Kampala as there was a problem with his lung.

24. Monday said that his mother, Prisicalla, died in December 2013. He said that she was in the course of childbirth when she became anaemic and could not survive. He said that the baby did not survive either. When asked who the father was, Monday replied that it was Bol Mabuong. He said that Bol died last year. He said that before that time, Bol was living in Rumbek but was not living with them. He said that Bol’s relationship with the visa applicant’s mother was to do with culture – Bol being the brother-in-law to Prisicalla – and that a brother-in-law “inherits” his brother’s wife and has children by her. Monday said that Kedit’s mother, Adol, was also dead, having died of anaemia in 2013.

25. The Tribunal heard from Monika at the initial hearing who said that she looked after her son’s children after his death. She confirmed that Prisicalla married another son of hers but died trying to give birth to his child, having run out of blood and become anaemic.

26. The Tribunal has considered the information in front of it, including the testimony of the parties at hearing. It accepts that the death certificate provided in respect of the visa applicants’ father was issued on behalf of Ugandan authorities, and in that sense it is a genuine document. However, it is not able to be satisfied that the information used to generate the certificate was from objective sources such as the hospital where he was taken and not from information provided by the family. Moreover, the certificate was generated in 2021 – more-than-13 years after his claimed death – and cannot be regarded as contemporaneous evidence. For these reasons, it is accorded only some weight.

27. The Tribunal has considered a letter titled “Affidavit of death” dated 1 October 2021 from the Most Reverend Alupayo Manyang Kuctiel Nhiera, who is Dean of the Episcopal Church of South Sudan. The Most Rev Nhiera stated that he had witnessed the visa applicants’ father on the day of his death on 22 August 2008. The Tribunal understands from open-source documents that the Most Rev Nhiera had been a bishop of the Rumbek Diocese. It accepts that he may have been in a position to be able to provide the affidavit. This document is accorded weight.

28. The Tribunal has considered evidence in the form of photographs of the claimed grave of the visa applicants’ father. The photographs show a headstone bearing a cross and the following words which were either written or etched by hand:

    NAME: JOSEPH MUORDIT MABUONG

    BORN: 1/1/1972          DIED: 2[?]/5/2008

29. The Tribunal notes that the photographs assert that the visa applicants’ father died in May 2008, despite other sources (such as the “Affidavit of death” by the Most Rev Nhiera and the death certificate issued by the Ugandan authorities) stating that he died in August 2008. This inconsistency in dates causes the Tribunal to attach little weight to the photographs.

30. The Tribunal has considered the information in front of it, including the above information. Having made findings against this information and weighed it against itself, it finds that Mr Mabuong died in 2008.

31. In relation to the claimed deaths of Prisicalla and Adol, the Tribunal has considered the death certificates submitted. Both certificates purport to be from the Rumbek State Hospital. The first of these, in respect of Prisicalla, puts the date of death as 24 December 2012 and lists the cause of death as “Diarrhea, Vomitting & Anaemia”. It is dated 23 December 2012. The second of these, in respect of Adol, puts the date of death as 2 January 2013 and lists the cause of death as “Diarrhea, Vomitting, [?], Dehydration, aneamia [sic] & Hepers [sic] Zoster”. The certificate is undated. Both of the death certificate were signed by Dr Elijah Makender Makec. The Tribunal understand from open-source materials that Dr Makender Makec is a doctor who was practising at Billing Alpha Civil Hospital at the time of the claimed deaths.[2] Billing is a town that is located 17 kilometres from Rumbek. Moreover, there is evidence from a private news website (Sosanews.com) that Dr Makender Makec was practising at Rumbek Hospital in May 2010.[3]

    [2] >

    The Tribunal has considered these documents and finds that Dr Makender Makec was a doctor at Rumbek Hospital at the time of the claimed deaths. It accepts that he would have been in a position to be able to sign the death certificates. Although there are some irregularities such as the second death certificate not being signed, it accepts that the documents are genuine. It accords significant weight to this evidence and finds that it displaces any concerns based on the inconsistent dates of death given by the parties. Having made the above findings, the Tribunal accepts that Prisicalla and Adol died as claimed in December 2012 and January 2013 respectively.

32. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

33. 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. As there is no clear evidence that the grant of the visa would not be in the best interests of the visa applicants, the Tribunal finds that there is no compelling reason. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

34. Given the findings above, cl.117.211(a) is met in respect of all visa applicants. Clause 117.211(a) is an alternative requirement under cl.117.211, and that subclause is met.

35. The Tribunal finds that cl.117.221(a) is met in respect of sixth-named visa applicant at the time of this decision. As the first-named, second-named, third-named, fourth-named and fifth-named visa applicants have turned 18 since the time of application, the Tribunal finds that cl.117.221(b) is met in respect of them. Clauses 117.221(a) and (b) are alternative requirements under cl.117.221, meaning that that subclause is met.

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

    DECISION

37. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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.

    David Crawshay
    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.