1508660 (Migration)

[2015] AATA 3484

1508660 (Migration) [2015] AATA 3484 (14 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Aisha Ahmed Mustefa

VISA APPLICANTS:  Ms Sumeya Mohamed
Mr Imran Mohamed
Ms Kedia Mohamed

CASE NUMBER:  1508660

DIBP REFERENCE(S):  OSF2012/050298

MEMBER:Mary Cameron

DATE:14 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 14 October 2015 at 3:06pm

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 25 June 2015 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 applied for the visas on 4 January 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.

3. 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.

4. 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 that the visa applicants were the orphan relatives, as defined, of the review applicant.

5. The review applicant applied to the Tribunal for the review of the delegate’s decision.

6. The review applicant appeared before the Tribunal on 9 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband Abdurahman Dawd Mohammed; from Abdu Hassen Mohamed who is a family friend of the review applicant, and from the review applicant’s sister Nazira Ahmed by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants are the orphan relatives of the review applicant.

10. The evidence of the review applicant is that she is the aunt of the visa applicants.

11. The review applicant’s evidence is that she was born in November 1980 in Ethiopia and migrated to Australia ten years ago under the sponsorship of her husband Abdurahman Dawd Mohammed. She lives with him and their three children in Cranbourne. Prior to migrating to Australia she lived in Addis Ababa with her parents and siblings.

12. The review applicant told the Tribunal that she has four brothers and three sisters including one sister, Halima Ahmed, who has disappeared. Halima Ahmed is the mother of the visa applicants. All of her other siblings live in Addis Ababa.

13. The review applicant told the Tribunal that the visa applicants, her nephew and nieces, are Sumeya Mohamed who is twelve years old, Imran Mohamed who is ten and Kedija Mohamed who is seven. The review applicant told the Tribunal that the children live with her parents (their grandparents) and are cared for by her brother Abdul. She advised the Tribunal that at the time of the Tribunal hearing her brother was away in the provinces, and could not be contacted by the Tribunal, and the visa applicants were staying during his absence with her sister Nazira.

14. The review applicant told the Tribunal that she supports the visa applicants financially, mostly by transferring money through agents to her brother. She is in regular contact with them by telephone.

15. In response to the Tribunal’s questions the review applicant told the Tribunal that the visa applicant’s father Mohamed Ebrahim Awel died suddenly on 13 January 2012. The family does not know what caused his death, but he was at work pouring concrete when he collapsed and died. He was not taken to hospital, and the people who gathered around him when it happened took his body to the family home. Everyone was shocked. There was a gathering in grief and those people who attended the gathering washed the body and took it to the mosque and the body was buried the same day.

16. According to the review applicant’s evidence this was a very shocking experience for her sister Halima who had a difficult personal history. This was because her husband Mohamed had come to Addis Ababa from Walo Province and he and Halima fell in love. This caused the review applicant’s family to become upset, and to refuse to allow Mohamed to come to their place. This was because the older sister of Halima was not yet married and it is unacceptable in the culture of the family for a younger sister to marry before an older sister. However Halima insisted that she must marry him, and her parents made her choose between the family and Mohamed. She chose to go with him and left the family home. This was bad for the family. After one year Halima had a baby and a family mediation was conducted with community elders and Halima was reconciled with her family.

17. The review applicant told the Tribunal that after this experience Halima was not mentally well, and did not eat well and she had a lot of mental stress after Mohamed passed away. According to the review applicant Halima left home on 3 March 2012, several weeks after the death of her husband, and no-one has seen her since. According to the review applicant’s evidence the family tried to find Halima by asking people and reporting to the police station. The Tribunal noted that there is no evidence before the Tribunal in respect to any enquiries made by the family with police or otherwise about Halima’s disappearance, in response to which the review applicant stated that there is a police report which was at home with her brother Abdul. She stated that no-one had told her to bring it. She then told the Tribunal that her previous migration agent had not given her good advice.

18. The Tribunal noted a concern raised by the delegate at the primary stage, as set out in the primary decision record, a copy of which the review applicant provided to the Tribunal. This concern is that the Death Certificate for Mohamed Ebrahim Awel states that it was issued to Halima Ahmed (the mother of the visa applicants) in November 2012 which is many months after the review applicant claims that Halima disappeared. The review applicant stated that after Halima disappeared, the Death Certificate was requested by their sister Nazira. The Tribunal queried why, if the Death Certificate was is fact issued to Nazira Ahmed, it would state on its face that it was issued to Halima Ahmed Mustefa.

19. The review applicant responded that a Death Certificate is not seen as having value in the place where it was issued. She stated that her brother Abdul went to the Kebele to get a Death Certificate but was told it must be requested by close family or a wife of the deceased, with a support letter from the elder’s association. Abdul went home with this information, but Mohamed Ebrahem Awel’s brothers lived in the countryside and he couldn’t contact them, so Nazira Ahmed and the children (the visa applicants) went to the Kebele to get the Death Certificate. The officials asked who needed the certificate and then they checked Mohamed’s name in the computer and asked for Halima, and then they issued the Death Certificate. The review applicant stated that even though the Death Certificate was really given to Nazira, during the time the Nazira was at the Kebele the children (the visa applicants) were calling her “mummy”. This was because they had become very close to Nazira after their mother’s disappearance, and so the officials thought she must be their mother Halima Ahmed.     

20. The Tribunal asked the review applicant whether she was saying that her sister Nazira Ahmed had pretended to be Halima Ahmed, who was the widow of Mohamed Ebrahim Awel. The review applicant responded that because Nazira was with the children the officials presumed that she must be their mother.

21. The Tribunal told the review applicant that it did not consider this explanation to be plausible, as it would mean that the Kebele had issued a Death Certificate without asking the identity of the person to whom it was issued. The review applicant repeated her previous statement that the Death Certificate is not of value. She stated that Mohamed’s body had been taken to the mosque and buried at the cemetery and they didn’t need any evidence. She then stated that Nazira probably didn’t pay much attention when she obtained the Death Certificate because she was looking after the children.

22. The Tribunal told the review applicant that country information before the Tribunal indicates that all deaths in Ethiopia must be registered with the local Kebele and that this must be done by an immediate relative of the deceased who must present the identity documents of the deceased (Department of Immigration and Border Protection, Country Information Report – Ethiopia, April 2014). The Tribunal queried whether these procedures were followed when her sister’s husband Mohamed died. The review applicant stated that when Mohamed died a letter was given by the elders, and her brother Abdul took this letter to the Kebele. She stated that if Mohamed was not dead and buried they would not have provided this letter. The review applicant’s siblings gave this proof to the Kebele which is why they issued the Death Certificate in the name of Halima Ahmed.

23. The Tribunal noted that the Birth Certificates for the three visa applicants had been issued by a hospital rather than by the Kebele, which is the usual practice in Ethiopia. The Birth Certificates also each record the father (Mohamed Ebrahem Awel’s) age as being forty one, which he was not when any of the children were born. The review applicant stated that again, Birth Certificates have no value and she obtained them from the hospital for the sake of the visa application. She stated that it is not like it is in Australia. She stated that perhaps when her brother Abdul went to get the Birth Certificates he gave the wrong information.

24. The review applicant stated that Halima was a mother and was soft hearted and had lost her husband, and she feels sorry about her life and that is why she sponsored the children. She stated that the other issue which caused her to sponsor the children is that her family in Ethiopia is proposing to arrange a marriage for the first named visa applicant Sumeya Mohamed, who is under age, and would not be in her best interests. The Tribunal suggested that this may not be lawful under Ethiopian law (Population Council, Child Marriage Briefing Ethiopia, July 2004). The review applicant responded that this is why she is worried about her, and because her family also wants the other visa applicants to go and live with Sumeya once Sumeya is married.

25. The Tribunal queried why the review applicant was raising this reason for her sponsorship of the visa applicants for the first time at the Tribunal hearing. The review applicant stated that if someone had asked her she could not have disclosed this information, but she had become upset and told her husband. She stated that her husband had told her about the orphan relative visa subclass and that was when she decided to sponsor them. The Tribunal noted that Sumeya Mohamed had been nine years of age at the time the review applicant sponsored the visa applications, and queried whether the family had made marriage plans for her while she was so young. The review applicant stated that first there will be the engagement, then after a year or two, the marriage. She stated that she heard this from her sister, and this is why she had no option but to sponsor the children.

26. The Tribunal asked the review applicant the name of the man to whom the first named visa applicant is to be engaged. She stated that she can’t remember.

27. The Tribunal heard evidence from the review applicant’s husband Abdurahman Mohammed. His evidence regarding the death of the visa applicants’ father was consistent with the evidence of the review applicant.  He also provided consistent evidence regarding the temporary estrangement of the visa applicants’ mother from her family, telling the Tribunal that they were reconciled after the birth of her first baby. He told the Tribunal that Halima was not emotionally well after the death of her husband, because she was in grief, and after two or three months she disappeared. He stated that the family did not tell the review applicant about this straight away but hid it from her. He can’t remember how long it was before they told her. He told the Tribunal that, from what he has heard, the family made enquiries with the police and the Kebele but they have heard nothing about what happened to Halima.

28. The witness provided consistent evidence with that of the review applicant about the family’s plan to have Sumeya Ahmed married by arrangement. He stated that they will arrange for her to marry a rich person so that he can help the other children. He stated that his wife told him about this. The Tribunal asked him when the review applicant had told him about this plan and the witness stated that she told him when Halima disappeared in 2012, and the family discussed the issue. He stated that this was about three months after the disappearance.  He agreed that this was at a time when Sumeya was eight or nine years old. He stated that it consistent with their culture and their religion for a girl of this age to be prepared for marriage. The Tribunal suggested to the witness as it had to the review applicant that this is not a lawful arrangement under Ethiopian law, and he stated that it may not be legal but is culturally and religiously acceptable.

29. The Tribunal heard evidence from the witness Mr Abdu Hassen Mohammed who told the Tribunal that he had attended the hearing because, like the review applicant and her husband, he is of Oromo ethnicity and he is part of the Oromo community in Australia. He knows that the visa applicants’ father passed away in 2012, as they had heard about this in Walo Province . He stated that after three months his wife Halima disappeared. He stated that he has delivered money to the review applicant’s brother in Addis Ababa.

30. The Tribunal heard evidence from Nazira Ahmed, who is the review applicant’s sister, by telephone. Ms Ahmed stated that after the visa applicants’ father died, their mother disappeared, and they have heard nothing.  She stated that this was two months after her husband died. In response to the Tribunal’s question as to what steps have been taken to try to find Halima, the witness stated that after her disappearance they asked family, friends and community and reported the disappearance to the police, but did not have a good outcome.

31. The Tribunal queried why the visa applicants’ extended family in Ethiopia do not wish to care for them, and the witness stated that they live with their grandparents and no-one is looking after them. She agreed that her brother Abdul is the one who manages the family, but stated that he doesn’t have much spare time to care for the visa applicants. In response to the Tribunal’s query as to whether any other plans have been made for the visa applicants, the witness stated that the review applicant has started the process of sponsoring them, and before this process was started the family had planned to marry Sumeya and send the other children to live with her. She stated that now Sumeya is twelve and she would first be engaged and later married.

32. The Tribunal asked whether the family had a particular person in mind to whom Sumeya would become engaged. The witness stated that there was “one guy” who was a nineteen year old boy, but she doesn’t know his name, but her parents know his name.

33. The review applicant told the Tribunal that the visa applicants lost their parents when they were young and she wants to bring them to Australia to join her family here. She again spoke of the poor work of her previous migration agent and commenced to extract documents from a folder as ‘proof’ of his unsatisfactory conduct. The Tribunal asked her whether she wished to provide additional documentary evidence for the purposes of the review, and she asked “what kind of documents?” The Tribunal noted that it is a matter for the review applicant to determine what documentary and other evidence she wished to provide to the Tribunal, noting also that the review applicant is represented in the review by her registered migration agent.

    Are the visa applicants orphan relatives of an Australian relative?

34. 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.

35. ‘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, Aisha Ahmed Mustefa is the relevant Australian relative.

36. For the reasons below, the Tribunal finds that the visa applicants were not the orphan relatives of an Australian relative at the time of application or at the time of this decision, and that cl.117.211 and cl.117.221 are not met.

37. It is up to the review applicant to make her case. However in the present case the evidence of the claimed death of the applicants’ father and disappearance of their mother is scant.

38. The review applicant has lived in Australia for the past ten years and was not therefore present in Ethiopia when the claimed events of the death of the visa applicants’ father and the disappearance of their mother occurred. She has heard about these matters from her family members. The Tribunal has carefully considered the parties’ evidence regarding the death of Mohammed Ebrahem Awel in January 2012 in Addis Ababa. Although not without some concerns, the Tribunal accepts, in considering the evidence as a whole, that Mohammed Ebrahem Awel died in the circumstances claimed. Although, on the review applicant’s own evidence, Death Certificates may be issued by local authorities in Ethiopia upon the request of family members of a deceased, rather than at the time of death, and are considered to be of little value, the Tribunal nevertheless accepts that the death occurred. This is based on the consistent oral evidence of the review applicant and the witnesses at hearing as to the time, place and circumstances of his death, as well as to the unexpected nature of the death, the uncertainty of cause, and the conduct of the family and community of the deceased in the aftermath.

39. The Tribunal accepts, on balance, that Mohammed Ebrahem Awel was a parent of the visa applicants who can no longer care for them because at the time of the visa application he was deceased: r.1.14(b).

40. However the Tribunal does not accept that the visa applicants’ mother was, at the time of application, or is at the time of this decision either dead, permanently incapacitated or of unknown whereabouts. The parties’ claim is that the visa applicants’ mother is of unknown whereabouts. At the Tribunal hearing the Tribunal questioned the review applicant and the witnesses about her claimed disappearance.

1. The review applicant gave evidence that the visa applicants’ mother, Halima Ahmed Mustefa, had been in poor mental health since a temporary estrangement from her family when she decided to marry her husband, but which was resolved after the birth of their first child in July 2003, almost ten years prior to the date of the visa application. Other than the review applicant’s oral evidence in this regard there is no supporting evidence to suggest that the visa applicants’ mother had any ongoing mental health concerns such as might contribute to a decision to leave her home and family and disappear as claimed. Although the Tribunal does accept that Halima Ahmed experienced a lot of mental stress and did not eat well in the weeks after her husband’s unexpected death, as this would be a wholly probable response to the sudden death of her spouse, the Tribunal does accept, based on this evidence, that she consequently disappeared on 3 March 2012 and no-one has seen her since.

2. The review applicant’s evidence regarding the disappearance of her sister and the family’s attempts to find out what happened to her is extremely vague. She has suggested that her family “asked people” and went to the police but have heard nothing. She told the Tribunal that there was a police report but it was left “at home” with her brother Abdul who was not in a position to be contacted by the Tribunal. The Tribunal notes that no other evidence of a police report was provided to the Department at the time of application nor to the Tribunal in the course of the review.

3. The review applicant’s husband and sister provided similar evidence to that of the review applicant about this matter. Mr Abdurahman Dawd Mohammed told the Tribunal that the review applicant’s family had contacted the police and the local Kebele about the disappearance but had heard nothing. Ms Nazira Ahmed told the Tribunal that they asked family, friends and community and reported the disappearance to the police, but did not have a “good outcome”. As noted above there is no documentary evidence of any police report being made in respect of the claimed disappearance, nor any documentary evidence or other records of a report to the local Kebele.

4. In addition to the vague and scant nature of the parties’ evidence regarding the claimed disappearance of Halima Ahmed, the Tribunal considers the evidence before it regarding the issuing of a Death Certificate for Mohammed Ebrahem Awel to Nazira Ahmed to be implausible. The review applicant’s own evidence is that the local Kebele refused to issue a Death Certificate for Mr Awel to the review applicant’s brother Abdul because the certificate must be provided to a close family member or wife of the deceased. Her claim that it was subsequently provided to their sister Nazira without her being asked to identify herself in any way, and on the assumption that she was in fact the wife of the deceased because she had children with her, is not plausible, and the Tribunal does not accept that this occurred.

5. The Tribunal has considered the review applicant’s evidence regarding the proposed marriage of the first named visa applicant (Sumeya) as being potentially corroborative of the disappearance of the visa applicants’ mother, as it might be presumed that this proposal would not have been considered were her mother present to care for the visa applicants. However the Tribunal does not find this evidence to be persuasive. The review applicant and the witnesses at hearing told the Tribunal that the family’s intention to have Sumeya married was formed around the time of the claimed disappearance of their mother in 2012, and the review applicant stated that this was a reason for her decision to sponsor the visa applicants. However, as discussed with the review applicant at hearing, this issue was not raised by the parties at the time of the visa application, and was raised for the first time in the course of the review with the Tribunal at the Tribunal hearing. The Tribunal considers that were the proposed child marriage of the primary visa applicant a motivation for the visa applications, the review applicant (the sponsor) would have identified her concerns at an earlier time.

6. Further, although the review applicant, her husband and her sister all gave evidence of the family’s proposal that the first named visa applicant be married, their evidence was vague. The review applicant told the Tribunal that she could not remember the name of the person Sumeya was to marry. Her husband Mr Mohammed said that it was planned that she would marry someone rich who could support all of the visa applicants, and the witness Nazira Ahmed stated that her family had in mind a nineteen year old boy, whose name she doesn’t know (although her parents do).

7. Given the vague nature of the evidence provided by the parties in respect of this matter the Tribunal affords it little weight in assessing the claimed disappearance of the visa applicants’ mother Halima Ahmed Mustefa.

8. The Tribunal does not accept, based on the evidence before it, that the visa applicants’ mother Halima Ahmed Mustefa has disappeared as claimed.

9. It follows that, based on the evidence before it, considered as a whole, the Tribunal does not accept that at the time of the visa applications the visa applicants’ mother Halima Ahmed Mustefa was dead, permanently incapacitated or of unknown whereabouts.

10. For the reasons given the Tribunal is not satisfied that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts: r.1.14(b).

11. As noted above the Tribunal has considered the parties’ evidence regarding the circumstances of the first named visa applicant Sumeya Mohamed, and the claimed intention of the review applicant’s family to arrange her marriage, and while it considers the unlawful marriage of children to be abhorrent, it does not find that this concern overcomes the requirement for the applicants to satisfy the definition of orphan relatives within the meaning of r.1.14.

    Have the applicants been adopted by the Australian relative?

12. Clause 117.211(b) is met if, at the time of application, the applicant was not an orphan relative only because the applicant had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

13. There are no claims before the Tribunal that the visa applicants have been adopted by the review applicant, and the Tribunal is not able to find on the evidence before it that the visa applicants meet the requirements of cl.117.211(b).

14. Given the above findings, the Tribunal is not satisfied that the visa applicants meet the requirements of cl.117.211.

15. The Tribunal finds that the visa applicants do not continue to satisfy the criterion in cl.117.211 at the time of decision, and this is not only because the visa applicant has turned 18.  It follows that cl.117.221 is not met.

    CONCLUSIONS

16. The Tribunal finds that the criteria for the grant of a Subclass 117 visas are not met. In respect of the other visa subclasses there is no material which suggests that the visa applicants meet prescribed criteria for the visa sought and no claims have been advanced in respect of the other subclasses.

    DECISION

17. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Mary Cameron
    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.