TONG (Migration)

[2018] AATA 2010

TONG (Migration) [2018] AATA 2010 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms ACHAI GARANG TONG

VISA APPLICANTS:  Master MADHIEU GARANG TONG TONG
Master NGOR GARAGNG TONG TONG
Miss ACHAN GARANG TONG TONG

CASE NUMBER:  1606064

DIBP REFERENCE(S):  2014044409A

MEMBER:Kira Raif

DATE:24 May 2018

PLACE OF DECISION:  Sydney

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 24 May 2018 at 11:24am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Orphan relatives of Australian relatives – Death of the parents – Father’s medical condition – Passport discrepancy – Parent’s death certificate – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2 cls 117.111, 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 February 2016 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 are nationals of South Sudan, born in 1997 and 2000 respectively. They applied for the visas on 31 July 2014. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives of their Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 3 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from another witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Sudanese 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. 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 and cl. 117.221.

6. 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.

7. ‘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.

   Are the visa applicants orphan relatives of an Australian relative?

8. The review applicant provided to the Tribunal a copy of the primary decision record. The visa applicants claim to be siblings of the review applicant. The visa applicants stated in their application that their mother Akuc Deng Kir was deceased and their father Garang Tong Tong was permanently incapacitated. They stated that their father was unable to care for them because of his medical condition and financial difficulties. The visa applicants presented with the application a medical certificate from Aweil State Hospital in South Sudan stating that Mr Tong was admitted in November 2013 and diagnosed with prostate hyperplasia and renal failure and suspected prostate cancer. The delegate invited Mr Tong to undertake medical examination by a panel doctor in Kenya. The applicants responded by stating that Mr Tong did not wish to die in Kenya but instead decided to go to South Sudan as it is traditional for a person to die and be buried at the place of birth. The visa applicants subsequently provided a copy of their father’s death certificate, as well as a copy of his passport.

9. The delegate noted the following concerns with the presented evidence.

   a.The visa applicants provided two copies of the same pages from Mr Tong’s passport. One copy has a Kenyan stamp while the other does not. The delegate questioned the genuineness of that document and of the claim that Mr Tong resided in Kenya and departed Kenya to move to South Sudan prior to his death.

   b.Mr Tong’s death certificate lists the sponsor as the informer of death. The delegate notes that the sponsor has been residing in Australia since 2011 and has not left Australia since that time. The delegate considered it unlikely that the sponsor would be able to obtain he document remotely from Australia.

   c.The delegate also considered it implausible that Mr Tong would travel from Kenya to South Sudan, given the seriousness of his claimed condition. The delegate notes that Mr Tong was diagnosed with cancer in 2013 and was living in Kenya since January 2014 yet there were no medical records to show that he received medical attention from that time.

   d.The death certificate for Mr Tong refers to him being married, however the applicants claim their mother passed away 11 years earlier. The delegate noted that if Mr Tong had remarried, care may have been available to the children.

10. The delegate was not satisfied the children’s father was deceased as claimed.

    a.The sponsor declared her mother as deceased in her own application made in 2010.

    b.The mother’s death certificate submitted with the present application the mother is stated to have been born in 1972 and died of malaria in February 2004. However, in her own migration application the sponsor declared that her mother was born in 1945.

11. The review applicant provided a declaration to the Tribunal on 2 May 2018, a day before the scheduled Tribunal hearing and two years after her application for review was lodged with the Tribunal. No explanation has been offered by the applicant’s representative for the late submission of documents. In her declaration, the applicant states that when her father knew he was dying, he decided to return to South Sudan. He did not receive treatment in hospital and there is no evidence of hospital treatment. The review applicant states that after her father died, she asked a relative to obtain the death certificate, which is not normally issued unless there is a request for it. Because she requested the death certificate, she was stated as an informant. The same happened with her mother’s death certificate. The review applicant states that there is no concept of widows in the Sudanese culture and even after the death of a spouse, one is identified as being married and a person is not said to be dead if they have children. The applicant states that her husband made a mistake in relation to the dates of births and a statement to confirm that has been submitted to the Tribunal.

12. The Tribunal has also considered the submission made by Mr Deng who confirmed in oral evidence the review applicant’s claims relating to the children’s circumstances and the circumstances relating to the deaths of their parents. Mr Deng confirmed that when a person dies, their widows would still be considered as being married.

13. With respect to the apparent discrepancies on the passport, the review applicant provided to the Tribunal the original document which was issued in January 2014 and had a Kenyan visa issued on 24 January 2014. The review applicant explained the difficulties with obtaining the passport and referred to the lawlessness on the border, stating that people try not to use their passports, and do not have to, when crossing some borders. That does not explain the apparently inconsistent information on the two documents. The review applicant suggested that one copy was made before the visa was issued and another copy was after the visa was issued but she said she was not sure.

14. The review applicant said her father wanted to travel to Sudan for quite some time but she was against it. It was not until August 2015 that he travelled to Sudan. The review applicant said that her father obtained the passport in 2014 because he could not travel to Kenya without the passport. The review applicant said her father was ill for some time but they did not know what was wrong with him. He had to work to support the children but he was not doing well. By 2013 he was diagnosed with cancer by a doctor in Sudan. She then made the decision to bring the children to Kenya for better schooling opportunities. After the father returned to Sudan, the children stayed on their own. The review applicant said that after her father returned to Sudan, he did not get treatment because they had no money for it. The review applicant said that when her father passed away, the hospital did not issue the death certificate. She asked a relative to obtain the death certificate from the hospital and the relative explained that the certificate was needed by the review applicant and that is why her name was recorded as that of an informer. The Tribunal is mindful that even if the review applicant requested the death certificate, that does not make her an informer of death, but the Tribunal considers the applicant’s explanation plausible.

15. The Tribunal shares the delegate’s concerns about the documentary evidence submitted with the application and the Tribunal considers that evidence inadequate in relation to the parents’ deaths. However, the Tribunal also acknowledges that it may be difficult or impossible to obtain official records in South Sudan.

16. Following the hearing, the Tribunal arranged for the father’s death certificate to be verified through the overseas post. On 24 May 2018 the Tribunal received confirmation that the death was registered, that the father is recorded to have died of cancer and that the death certificate is genuine.

17. Having regard to the documentary and oral evidence, the Tribunal is satisfied that the visa applicants’ mother has passed away and the Tribunal notes in particular that the review applicant provided the same information in her own visa application. The Tribunal is satisfied, on the basis of the verification of the death certificate, that the visa applicants’ father has passed away at the time of this decision. The Tribunal also considers it highly plausible that in the months prior to his death, his condition is likely to have been so poor as to render him incapacitated. The Tribunal is satisfied, on balance, that at the time of the application, the father was permanently incapacitated.

18. On balance, the Tribunal is satisfied that when the application was made, and at the time of this decision, the applicants could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal is satisfied the visa applicants meet r. 1.14(b).

19. The visa applicants claim to have been born in 1997 and 2000 respectively. The Tribunal finds that they were under the age of 18 at the time the application was made. There is no suggestion that they have partners and the Tribunal is satisfied the visa applicants do not have partners. The visa applicants are siblings of the sponsor. The visa applicants meet r. 1.14(a). 

20. The review applicant’s evidence to the Tribunal is that she has been supporting the visa applicants and will continue to provide for them if they arrive in Australia. The Tribunal is satisfied there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicants. The Tribunal is satisfied the visa applicants meet r. 1.14(c).

21. The Tribunal finds that the visa applicants meet r. 1.14 and are orphan relatives of the sponsor. The visa applicants meet cl. 117.211 and cl. 117.221.

    Conclusion

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

    DECISION

23. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named 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