Yosia Edward (Migration)

[2018] AATA 5241

Yosia Edward (Migration) [2018] AATA 5241 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Susan Kiden Yosia Edward

VISA APPLICANTS:  Ms Scovia Poni Nayike Elisa
Mr Solomon Gwolo Nayike Elisa
Mr Emmanuel Kuyu Nayike Elisa

CASE NUMBER:  1718007

DIBP REFERENCE(S):  IRIS 40627823401

MEMBER:Kira Raif

DATE:7 December 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 07 December 2018 at 2:34pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relatives of their Australian relative – DNA results of relationship provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, Schedule 2, cls117.211, 117.221, r 1. 14

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 10 July 2017 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. They made the application for the visas on 31 July 2015. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 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 23 November 2017 and 10 October 2018 to give evidence and present arguments. 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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. 

   Are the visa applicants orphan relatives of an Australian relative?

7. The review applicant provided to the Tribunal a copy of the primary decision records in relation to all visa applicants. These offer the following information.

   Mr Solomon Gwolo Nayike Elisa and Mr Emmanuel Kuyu Nayike Elisa

8. The primary decision record indicates that the visa applicants claim to be the nephews of the sponsor. They provided with the application birth certificates (age assessment certificates), issued in 2015, identifying Nayike Elisa as the applicants’ father and Margret Kiden Elisa as their mother. The delegate noted that civil records in South Sudan can be obtained on testimony alone and given the fact that the certificate was issued many years after the children’s birth, the delegate was not satisfied this record was probative evidence of their date of birth or parentage.

9. The primary decision record also notes that in her own visa application, the sponsor declared three siblings but the visa applicants’ mother was not named as one of the sponsor’s siblings.

10. The visa applicants provided with the application a supporting letter from an official of the Adjumani Refugee Camp in Uganda who refers to the sponsor as ‘distant kin’ and the delegate suggested that this may indicate that she is not the aunt of the visa applicants as claimed. Overall, the delegate was not satisfied that the visa applicants were nephews of the sponsor.

11. With respect to the visa applicants’ parents, the primary decision record indicates that the visa applicants provided a death certificate for their mother, which has been verified as being genuine. With respect to the father, the visa applicants claim that they have different fathers whose identity is not known, although the age assessment record identifies the father as Nayike Elisa. The statement from the sponsor indicates that the visa applicants’ mother had relations with many men and she did not know who the father of the children was and in such circumstances, the responsibility for the children’s upbringing was with the children’s maternal grandfather.

12. The review applicant provided a written submission to the Tribunal in which she states that the age assessment certificate was issued in 2015 because at the time of birth, the children’s mother had no money to get the birth certificates. The Tribunal acknowledges that this may be the case but the Tribunal’s concern is with the probative value of a birth record issued more than ten years after the birth of the child. With respect to the child’s appearance, insofar as it is used to determine the child’s age, the review applicant notes that the appearance on the photograph may not be accurate and depends on a variety of factors.

13. The review applicant notes that the parents of the children are listed as Elisa Nayike and Margaret and she explained why the children were given their grandfather’s name. With respect to the statement from the official of the refugee camp, the review applicant states that this official refers to her as a long distance relative, being from overseas but she is the biological aunt.

14. The review applicant presented a statement from Mr Leke, chairman of the Kajo-Keji Community and Welfare Association who refers to his personal knowledge of the family, the relationship between the visa applicants and the sponsor and the deaths of the visa applicants’ parents. The applicant presented a further statement from a family friend and a number of birth records.

15. In oral evidence the review applicant told the Tribunal that she did not include the children’s parents in her visa application because of her husband, who felt embarrassed about this relative. She said that the mistake was made by her husband. The Tribunal that is mindful that the information on the application form relates to the existence of siblings, it was not limited to those siblings who the applicant chose to associate with or felt comfortable about. The review applicant claims that she had been untruthful in her own visa application when she failed to disclose all her siblings and that causes the Tribunal to be concerned about her credibility and her claims about the present relationship with the visa applicants.

16. The review applicant’s evidence is that since the children’s births, it was the maternal grandfather who took care of the children, as is customary. There had never been any man who was identified as the father of the children. The review applicant confirmed that there had never been any formal adoption of the children and she concedes that customary adoption is not available under the Islamic laws. The Tribunal finds that the maternal grandfather cannot be considered as the children’s father, even if he took care of the children, for the purpose of r. 1. 14.

17. With respect to the age assessment records, the review applicant explained that nobody gets these upon birth because of the cost. That is why they obtained the record many years later. The Tribunal accepts that there may have been reasons why the records were not obtained earlier, however, the Tribunal is concerned about the probative value of such documents obtained many years after the births of the children. Further, the review applicant’s evidence is that these birth records identify the children’s grandfather as their biological father because it was ‘too embarrassing’ not to identify the father. That is, the records are inaccurate insofar as they identify the biological father of the children and may therefore be unreliable. The Tribunal is also mindful that there does not appear to be any independent testing of the information. The information recorded on the age assessment has not been independently verified or checked against contemporaneous records and relies on the information supplied by the parties. For that reason also the Tribunal is not satisfied the age assessment records offer probative evidence of the information contained therein.

18. The visa applicants claim to be born in November 2009. The application was made in September 2015, so the applicants were five years old at the time of the application. While the Tribunal does not consider the documentary evidence of the visa applicants’ birth dates to be probative, the Tribunal is satisfied the visa applicants were under the age of 18 when the application was made. The Tribunal is satisfied they meet r. 1.14(a)(i).

19. The Tribunal found the review applicant’s evidence in relation to the children’s fathers to be credible. It is supported by statements from third parties. The Tribunal is prepared to accept, on balance, the review applicant’s evidence that the children’s fathers are unknown and that there were not any men who came forward to claim paternity. The applicant’s evidence is that the children had been cared for by the family, the mother and maternal grandfather, and subsequently by a family friend and the review applicant. In particular, the Tribunal accepts that the name of the visa applicants’ father appearing on the birth records relates to the name of the maternal grandfather because he had the responsibility for the children’s upbringing. The Tribunal accepts evince from third parties that the children had been cared for by the family and not by their biological fathers. The Tribunal acknowledges statements from their ‘carer’ (family friend), an official from the refugee camp and community representatives in Australia. The Tribunal also accepts the review applicant’s evidence and acknowledges that she has been providing support to these children. On balance, the Tribunal is prepared to accept the evidence that the fathers of the children are unknown. If the identity of the fathers is unknown, the Tribunal is satisfied that their whereabouts are unknown. As the mother’s death record had been provided with the application, verified and accepted by the delegate, the Tribunal accepts that these visa applicants cannot be cared for by their parents because each of them is either dead or because their whereabouts are unknown. The Tribunal is satisfied the children meet r. 1.14(b).

20. The Tribunal arranged DNA testing to confirm the relationship between the visa applicants and the sponsor. On 31 July 2018 the Tribunal received the results of the tests. These show that the sponsor is ‘highly likely’ to be the aunt of Scovia Poni Nayike Elisa. However, the results were inconclusive with respect to the relationship between the sponsor and the remaining two visa applicants, Solomon Gwolo Nayke Elisa and Emmanuel Kuyu Nayike Elisa. The profiles indicate that the aunt – nephew relationship was 1.5 times more likely in relation to Solomon and 1.7 times more likely in relation to Emmanuel, which is said to be insufficient to prove the relationship.

21. The Tribunal wrote to the review applicant pursuant to s. 359A seeking her comments on that information. The review applicant replied on 13 August 2018. She expressed her concern with the results of the DNA test, stating that she has spent a lot of money on results which are inconclusive. She states that she would not have done the DNA test if these children were not her sister’s children. At the review applicant’s request, a further DNA test was arranged.

22. On 6 December 2018 the Tribunal received the results of the second DNA test. These show that there is a probability of 96% that the review applicant is the aunt of Emmanuel and that evidences the relationship. With respect to Solomon, the results were again inconclusive. However, the DNA results also show that Emmanuel and Solomon are full siblings and on that basis, the assessor confirmed the relationship between the review applicant and Solomon. On the basis of this evidence, the Tribunal accepts that Emmanuel and Solomon are nephews, and relatives, of the sponsor. The Tribunal is satisfied they meet r. 1.14(a)(ii).

23. There is no evidence that the visa applicants have spouses or de facto partners and they meet r. 1.14(a)(ii).

24. The review applicant states that after she had lived in Australia for about a year, she contacted her sister in South Sudan and her sister told her of her pregnancy and the review applicant helped her financially and later learned that her sister had twins. She continued to provide financial support for the children even after her sister died. The review applicant refers to the help she provided to the children and other fees she has paid and states that she would not do that if these children were not related to her. The review applicant presented to the Tribunal evidence of financial transfers and the Tribunal accepts that evidence. The Tribunal acknowledges the review applicant’s submissions and accepts that she has been supporting the children and has spent considerable sums for the children’s welfare. She has indicated her willingness to do that in the future. The Tribunal finds that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the children. The visa applicants meet r. 1.14(c).

25. The Tribunal finds that the visa applicants meet r. 1.14 and are orphan relatives of the sponsor.

    Ms Scovia Poni Nayike Elisa (7/11/98)

26. The primary decision record indicates that this visa applicant claims to be the niece of the sponsor. She stated that her mother is Margaret Kiden Elisa and is deceased and her father is unknown.

27. With respect to her age, the visa applicant provided an age assessment certificate listing her date of birth as 1998. The certificate was issued in January 2015. As noted above, the delegate noted that documents in South Sudan can be issued on the basis of testimony and the age assessment certificate is not contemporaneous to the child’s birth. The delegate also noted that the visa applicant’s photographs suggest that she appears to be older than the claimed age of 17. The delegate was not satisfied that the visa applicant was under the age of 18 when the application was made.

28. With respect to the visa applicant’s relationship with the sponsor, the delegate noted that the age assessment certificate, issued many years after the child’s birth may not be a reliable document. The delegate also referred to the statement from an official of a refugee camp who refers to the sponsor as ‘distant kin’ which may suggest she is not the aunt of the visa applicant. The delegate was not satisfied the visa applicant is the niece of the sponsor.

29. With respect to being an orphan relative, the delegate made the same observations as in relation to the visa applicant’s claimed siblings. The delegate accepted that the child’s mother was deceased but was not satisfied that the identity of the father was unknown or that the whereabouts of the father were unknown. The delegate was not satisfied the visa applicant was an orphan relative of the sponsor.

30. The Tribunal arranged DNA testing to confirm the relationship between the visa applicants and the sponsor. On 31 July 2018 the Tribunal received the results of the tests. These show that the sponsor is ‘highly likely’ to be the aunt of Scovia Poni Nayike Elisa. On the basis of that evidence, the Tribunal finds that this visa applicant is a relative of the sponsor. She meets r. 1.14(a)(iii). There is no evidence that the visa applicant has a spouse or de facto partner and the Tribunal finds that she meets r. 1.14(a)(ii). As for the visa applicant’s age, the Tribunal acknowledges the review applicant’s evidence that contemporaneous birth records are often not obtained in the applicant’s home country. The Tribunal is of the view that, for the reasons stated above, the presented documents are of little probative value with respect to establishing the visa applicant’s age, however it does not necessarily mean that the date of birth on these records is incorrect. In the Tribunal’s view, it only means that the date of birth cannot be established by reference to the birth records or passport records.

31. In this case, the review applicant presented additional documentary evidence of the visa applicant’s age, as well as her own oral evidence. The Tribunal acknowledges that such evidence is very limited but, on balance, the Tribunal is prepared to accept that the date of birth recorded on the birth records correctly reflects the visa applicant’s age. She was under the age of 18 when the application was made and meets r. 1.14(a)(i) and r. 1.14(a).

32. For the reasons stated above in relation to the other visa applicants, the Tribunal accepts that this applicant’s mother has passed away and that the identity of the father is unknown and therefore that the whereabouts of the visa applicant’s father are unknown. The Tribunal accepts that the visa applicant cannot be cared for by either parent because each of them is dead or of unknown whereabouts. The visa applicant meets r. 1.14(b).

33. Also for the reasons stated above, the Tribunal is satisfied there are no compelling reasons to believe the grant of the visa would not be in the best interests of the visa applicant. Regulation 1.14(c) is met. The Tribunal is satisfied the visa applicant meets r. 1.14 and is an orphan relative of the sponsor.

34. The Tribunal finds that the visa applicants meet cl. 117.211. They continue to satisfy that criterion and meet cl.117.221.

    Conclusion

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

    DECISION

36. 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.

    Kira Raif
    Senior Member