Preconditions for Orphan Relative Sponsorship under Migration Regulation 1994
The section 1.14 of Migration regulation 1994 deals with the clauses that decide whether a person can be considered as an orphan relative. The pre condition of the legislation is that the person who is being the sponsor should be an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.
The sub section (a) of the legislation makes it mandatory that that one of the three clauses should be fulfilled first is ensuring that the applicant has not turned 18 years, second is to make sure that the person applying for the visa should not have a spouse or partner and lastly the person should be a relative of the sponsor.
The first pre clause of the regulation has not been validated in this case. Sameea cannot sponsor Deng because of the fact that she is neither an Australian citizen or achieved a permanent citizenship in Australia or a citizen of New Zealand. She is in Australia on Partner visa which doesn’t give her the right of sponsorship on the first place. The partner visa itself doesn’t make a person citizen of Australia; the permanent residence visa has to be achieved by Sameea to earn the right to be a sponsor to the applicant in this case.
In this case the age of applicant that is Deng Fumnaya of South Sudan has claimed to be 16 years as he has stated his date of birth to be on 29 January 2002. The chief evidence in its favour involves an identity card that is issued by the Chairman of the Local Council of Kawempe in Uganda and a SPML membership card that is issues on 8 February 2018. He suggests his age to be verified by his aunt who has been present at the time of his birth. This claim has also been verified by Sameea that the aunt used live in the same household during the time of his birth and there was a death of a relative in the same year Deng was born. There exists confusion regarding the age proof of applicant. The objection regarding the age proof of the client is from the fact that that the identity card issues to the client has been from the councillor of Uganda but the residence of the client is in South Sudan. There is no proof of the client being living or even travelling to Uganda. The schooling of Deng in Sudan gives evidence against his claim to be 16 during the time of the application rather it suggests that his age should be more than 18 during the time of his visa application. This can be considered as more evidential than the claim of the Aunt. But there is still a consideration because the second SMPL card that has been issued in this case suggested that the applicant was born in 29 January 2001. If this SMPL card is also to be taken into consideration it has be said that the time of application of visa was in 12 March 2018, which makes the age of the applicant to be 17 years 2 months during the time of visa application. The section 1.14 of the migration regulation claims that the age should be less than 18 years. So the age of Deng is not going to be a concern. It is also illegal for a person to hold two separate SMPL cards. This also serves as a strong case against issuing a visa to the applicant.
Deng is not married so he can claim to have no spouse of de factor partner which is the second part of the sub section (a). This section cannot be taken as a factor for objection of the claim of the visa.
The third clause is also matching as Deng and Sameea are related to each other by blood as they shared a womb. Half brother and sister can be considered as relatives.
The Minister is likely to refuse the visa application on the premise of the legislation that Sameea has not obtained a permanent citizenship in the Australia and hence doesn’t have a right to be a sponsor. Apart from that the age of Deng is also not justified as the issuance of the paper is not from the place of birth of the applicant. This can also be considered as evidence against Deng’s claims. The rest of the clauses match but still it is not possible to grant the application.
The sub section (b) of the law regulation suggested that the applicant of the visa is not being cared by either of the parents due to the fact that they are dead, doesn’t have the capacity or are missing.
First of all the applicant has attained the age of 18 at the time of the application so there is no need for adult supervision of the applicant. Secondly the sub section (a) has not been satisfied so there is no question as to why the sub section (b) is going to be addressed.
Father and mother of Deng are claimed to be dead in the year 2003 and 2006 respectively. Yet there is no death certificate, cemetery certificate or any other religious ceremony that is done to their body. Hence the claim of the death remains a mystery. However their absence can be considered as evidence for considering absence as ‘unknown whereabouts’ clause. So the sub section (b) of the claim has to be considered in this case.
So this section is also not going to be factor that can be considered against the application of Deng Fumnaya.
Reference
Homeaffairs, Partner Category Visa Options (2018) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/brin/part>
Legislation, Migration Regulations 1994 (2018) Legislation.gov.au https://www.legislation.gov.au/Details/F2018C00544
Nyamilepedia, Official: Sample SPLM/SPLA Members’ Identity Card (SPLM-ID) (2018) Nyamilepedia <https://nyamile.co/2014/07/25/official-sample-splmspla-members-identity-card-splm-id/>
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