1410499 (Migration)

[2015] AATA 3075

1410499 (Migration) [2015] AATA 3075 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Adela Rezai

VISA APPLICANT:  Mr Safar Ali Rezai

CASE NUMBER:  1410499

DIBP REFERENCE(S):  OSF2013/021580

MEMBER:Mary Urquhart

DATE:7 July 2015

PLACE OF DECISION:  Melbourne

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.

1. Statement made on 07 July 2015 at 2:37pm

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 June 2014 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

3. The visa applicant Mr Safar Ali Rezai applied for the visa on 22 August 2013. 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.

4. 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.

5. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations as he/she was not satisfied that the applicants could not be cared for by their parents because they are either deceased, or incapacitated or missing.

6. The review applicant appeared before the Tribunal on 7 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kazim Rezai, Mr Abdul Hadi Mozafari, Mr Hadi Muradi and by telephone, the visa applicant, Mr Safar Ali Rezai.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

8. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the Tribunal is satisfied that the visa applicant’s parents are deceased.

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

11. 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.

12. ‘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.  In the present case, the visa applicant is claiming to be the brother of Ms Adela Rezai, the relevant Australian relative, who is the applicant’ s biological sister .

13. It is claimed that the review applicant (the sponsor) who is an Australian resident has two siblings. A sister, Shekofa,  living in Iran and a brother, the visa applicant, now attending school in Quetta, Pakistan. It is claimed he is in Quetta without a guardian.

    Age – r.1.14(a)(i)

14. The applicant has provided an attested tazkira in support of his application. The Tribunal  notes this document is the primary identification document for all Afghanistan citizens. He has also produced his passport. The date of birth  he claims is 1 August 1998. This is given in his passport and in his tazkira. Mr Rezai has provided further documentation in the form of an education certificate recording that he has been a student in Quetta.. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The Tribunal is satisfied that Mr Rezai was under the age of 18 at the time the application was lodged and that he meets this criterion.

    Spouse or de facto partner – r.1.14(a)(ii)

15. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Oral evidence was given by the review applicant at the review hearing that the visa applicant did not have a spouse or de facto partner at the time of application or now. The visa applicant has provided a signed  Statutory Declaration deposing that his status is single. The Tribunal accepts that the applicant meets the marital status requirements in r.1.14(a)(ii) at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

16. Regulation 1.14(a)(iii) requires the 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.

17. The Tribunal accepts that the applicant is the review applicant’s biological relative in accordance with DNA testing. The Tribunal accepts that she is an Australian relative.

    No parental care – r.1.14(b) Regulation 1.14(b)

18. Regulation 1.14(b) requires that the 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. In his application the visa applicant claims that his parents Gholam Shar and  Bakhtawar are deceased. At the hearing the sponsor and visa applicant claimed their parents were deceased. The review applicant said their father Gholam Shar, passed away in 2008 on his way to Shah Joye and Kandi Pusht and that their mother, Bakhtawar, died  from illness.

20. In support of the claim that his parents are deceased the applicant provided a letter of confirmation from Mohammed Ebrahim  Faiyzi outlining an account of the deaths and a statement from Mohammad Qasim  Anguri  who is said to be  the Principal [Theology] of School of Thought Baqiria Angoori. It states the applicant is living without a guardian as his two sisters reside in Iran and Australia respectively . It states his parents are missing/ deceased.

21. The delegate refused the applications because  not satisfied, on the available evidence that the visa applicant’s parents were deceased as claimed. In this regard the delegate records that little weight was given to the supporting documentation regarding the deaths of the visa applicant’s parents on the basis that neither document was issued by a verifiable entity and was done on an “as reported basis”.

22. At the hearing the review applicant gave evidence that she was present at her mother’s death. Her Husband corroborated this and said he was nearby though not present at the time of her death and that he was informed almost immediately of her death.

23. The witnesses Mr Abdul Hadi Mozafari, Mr Hadi Muradi both gave sworn evidence of their knowledge of the deaths of both the visa applicant’s parents. Whilst each admitted being told in the traditional way by announcement from the mosque, the Tribunal gives some weight to their evidence.

24. The Tribunal accepts that the visa applicant  was very young at the time of his mother’s claimed death, being some 4 or 5 years old. The evidence is that his father went missing some three months before his birth. On the basis of his birth documentation and other evidence the Tribunal accepts that this is plausible.

25. Having regard to the evidence now before it, and when considered together with all the positive evidence, the Tribunal  finds, on balance, that the applicant’s father Mr Gholam Shar is missing/deceased and that his mother, Bakhtawar is deceased as claimed.

26. Accordingly, the Tribunal finds that the visa applicant cannot be cared for by either parent because each of them is dead, permanently incapacitated or of unknown whereabouts and therefore the requirements of r.1.14(b) are met at the time of application and continue to be met at the time of decision.

    Best interests – r.1.14(c)

27. Accordingly the Tribunal is satisfied that the visa applicant cannot be cared for by either of her parents because his father and mother are dead or permanently incapacitated and therefore he the requirements of r.1.14 (b).

28. 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.

29. The visa applicant is currently living without a guardian in Quetta, Pakistan. The submission is that he is currently dependant on the review applicant financially. Country information indicates the current political and security situation in Quetta is uncertain and dangerous. The Tribunal is satisfied that the visa applicant is not in a safe or stable situation as a minor.

30. The Tribunal  accepts the submission that if the visa applicant is able to live in Australia he can be cared for by the review applicant and her husband within their stable family structure with the certainty and security that he currently does not have.

31. The Tribunal is satisfied that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant and therefore she meets the requirements of r.1.14(c).

32. Given the above findings the Tribunal concludes that at the time of application the visa applicant was an orphan relative of his Australian relative, being the review applicant, and thereby satisfies cl.117.211 (a). Accordingly, the Tribunal finds that the visa applicant satisfies cl.117.211.

33. The Tribunal further finds that at the time of this decision, the visa applicant continues to satisfy the requirements of cl.117.211, and therefore satisfies cl.117.221.

    CONCLUSIONS

34. For the reasons given above the Tribunal finds the visa applicant satisfies the requirements of cl.117.211 and cl.117.221 of Schedule 2 to the Regulations

    DECISION

35. 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.

    Mary Urquhart
    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.