1617596 (Migration)

1617596 (Migration) [2019] AATA 1881 (29 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1617596
MEMBER:John Billings
DATE:29 March 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 29 March 2019 at 1:51pm
CATCHWORDS
MIGRATION – Child (Residence) (Class AH) visa –Subclass 117 (Orphan Relative) visa – insufficient documentary evidence to prove applicants are orphans – contradictory statements about family composition – no evidence about mother’s health – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,359A, 359AA, 375A, 376
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211, 117.221

CASES
MIAC v MZYNN [2012] FCA 1177
MIBP v CZQ15 [2017] FCAFC 194
MIBP v Singh [2016] FCAFC 183
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 24 August 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants (“[Mr A]” and “[Miss B]”) applied for the visas on 23 April 2015. 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.
The sponsor, the review applicant, [Mr C], is claimed to the brother of [Mr A]. [Mr C] is a 33 year-old Australian citizen born in Somalia. He is widowed. [Mr C] first arrived in Australia in 2008 as the holder of a Class XB Subclass 200 Refugee visa. Before that he was living in Kenya.
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.117.211 which require the applicants to be orphan relatives of an Australian relative.
In the case of [Mr A], the delegate not was satisfied with respect to his age and his relationship to [Mr C]. In the case of [Miss B], the delegate was satisfied with respect to her age and her relationship to [Mr C]. The main reason that the delegate refused to grant the visas was because [Mr A] and [Miss B] did not meet cl.117.211 and cl.117.221. That was because the delegate was not satisfied that they were orphans.
[Mr C] applied for review on 24 October 2016. He provided a copy of the primary decisions to the Tribunal.
[Mr C] appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from [Mr C]’s sister, [Miss D] (“[Miss D]”). ([Miss D] gave evidence because [Mr A] was asleep). The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
The Tribunal allowed [Mr C] time after the hearing in April 2017 to provide further material in support of the application and the Tribunal received the material soon afterwards.
The review has been reconstituted in circumstances where, since the hearing, the member who constituted the Tribunal has ceased to be a member. The Tribunal has had regard to the record of the proceeding. Among other things, the Tribunal has listened to the hearing recording.
[Mr C] was represented in relation to the review. The representative – said to be a close family member - did not attend the hearing. There was a migration agent involved at the primary stage until her appointment was withdrawn in mid-2016.
According to the visa applications [Mr A] and [Miss B] are nationals of Somalia. They are living in Kenya. At the time they applied for the visas [Mr A] was aged 17 and [Miss B] was aged 15. [Mr A] is now aged 21 and [Miss B] is now aged 19. [Mr A] and [Miss B] claimed that their father went missing in the year 2005 and that his whereabouts were unknown, and that their mother was deceased.
The delegate appears to have treated the claims about [Mr A] and [Miss B]’s mother to be that she was permanently incapacitated. (There are at least two possible sources of confusion. Whereas the visa applications indicated that the mother was deceased, the Sponsorship Forms (40CH), which also indicated that she was dead, named her as the person with parental responsibility and went on to provide her residential address. Secondly, there was a letter on the Department’s files purporting to be from her where she declared that owing to ill health she was unable to look after the children. The letter, in English, is undated. It is possible that the letter was submitted in connection with a previous application). At the hearing [Mr C] told the Tribunal that his mother was deceased. The documents he submitted after the hearing included documents in relation to her death.
[Mr A] and [Miss B] claim to have two other living siblings apart from [Mr C]: sisters [Miss D] and [Miss E], who were not included in the applications; and another sister, [Miss F], who was said to have been killed during conflict in Somalia in the early 1990s[1].
[1] There are variations in the spelling of names. The Tribunal generally uses the spelling in the visa applications.
The primary decisions include the following information.
In the application that [Mr C] made (in 2007) for a visa he provided to the Department a copy of his Household Registration at [a] Refugee Camp, Kenya. The Household Registration listed the mother and three siblings. [Mr A] was not one of them. Further, at an interview with the Department held in November 2007 [Mr C] “consistently” stated that he had only the following siblings, living and not living: [Miss D], [Miss E], [Miss F] and [Miss B][2]. ([Mr A] was not included). The Department’s records showed other attempts by [Mr C] to sponsor his mother and four siblings. The sponsor’s mother “and three (sic) siblings” were all registered with UNHCR and residing in camps in Kenya when the relevant applications were made. Later, an application was made in 2010 that included [Mr A] as a minor child. A further application was made in 2012 that included [Mr A]. There was no evidence submitted in support of the claimed relationship.
[2] The estimated date of birth given for [Miss B] in this information would mean that at the time she applied for the visa she was aged 13 and that she is 17 now.
The primary decisions also record that in his visa application [Mr C] stated that both his mother and father went to Nairobi in 2005 (from the refugee camp) and did not return.
The primary decisions refer to the letter by [Mr C]’s mother mentioned above. In the letter she stated that she was a widow living in Nairobi and that her health was deteriorating. The letter stated that she was giving “full guardianship” of the children to [Mr C].
The primary decisions record that “[n]o other information” was provided to support claims that the father’s whereabouts were unknown, or that any efforts had been made to locate him, or that the mother was permanently incapacitated and unable to care for the children.
The primary decision regarding [Mr A] records, further, that no birth certificate or other document was submitted to show [Mr A]’s age or relationship to the family. The primary decision regarding [Miss B] indicates that the delegate accepted the claims about her age and relationship to the family more or less because he considered that the claims had been consistently put forward in previous applications and there was nothing before the delegate to contradict them.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Department’s files and non-disclosure certificates
At the time the case was reconstituted, the Tribunal had only Department’s file [number] (regarding [Miss B]) to consider. The Tribunal has since obtained from the Department file [number] (regarding [Mr A]). The Tribunal has also obtained file [number] which file is referred to in the primary decisions as the file concerning [Mr C]’s visa application.
Two of these files contain non-disclosure certificates. As to the Tribunal’s obligations with regard to non-disclosure certificates see generally MIBP v Singh [2016] FCAFC 183 and, in particular, MIBP v CZQ15 [2017] FCAFC 194 at [73].
For reasons to be given, the Tribunal considers that it is not necessary to canvass the certificates with [Mr C]. Further, the Tribunal considers that there is no material in the files that it is required to disclose to [Mr C] under s.359A or s.359AA of the Act.
The contents of [Mr A]’s file are virtually identical to the contents of [Miss B]’s file. The most important difference is that [Miss B]’s file includes a non-disclosure certificate given under s.375A of the Act that covers what may be described as a general report for use by the Department. The Tribunal considers that the certificate is valid. [Mr A]’s file does not include a non-disclosure certificate but yet the same general report appears on that file. So, as a practical matter, the position is really the same as if there had been no certificate on [Miss B]’s file. But, more to the point, the general report does not materially go beyond certain statements that appear in the primary decisions about the Australian High Commission’s experience of fraud in applications for Orphan Relative visas. As will be seen, [Mr C]’s case fails not because of any general information about fraud, but because of the lack of evidence in support of the visa applications, and the anomalies that there are in this particular case.
There is a non-disclosure certificate on [Mr C]’s file. That is a certificate given under s.376 of the Act. The Tribunal considers that the certificate is valid but the information covered by the certificate has no material bearing on [Mr A] and [Miss B]’s case. It concerns routine character assessments for numerous applicants, including [Mr C]. It therefore contains the names and details of a number of other persons. [Mr C]’s file does not contain material of any significance that goes beyond the points that are recorded in the primary decisions.
The issues to be determined
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.
There is no claim that [Mr A] or [Miss B] have been adopted.
‘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, [Mr C] is the relevant Australian relative.
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. There is no claim of permanent incapacity. The claim is that [Mr A]’s father is of unknown whereabouts their mother is deceased.
For the reasons that follow, the Tribunal is not satisfied that [Mr A] and [Miss B] were orphan relatives of an Australian relative at the time of application. Furthermore, the Tribunal is not satisfied that they are orphan relatives of an Australian relative at the time of this decision.
The Tribunal observes in passing that towards the end of the hearing the presiding member made a general, favourable comment with regard to [Mr C]’s credibility. But the member also remarked that it would be necessary to await what further documents [Mr C] might submit and to consider all the material before making a decision.
The Tribunal makes these general remarks. If a person is currently permanently incapacitated, it may be relatively easy for an applicant to obtain medical or other expert evidence that would satisfy a decision-maker about that. On the other hand, the Tribunal is mindful that persons who flee their country in times of war or other conflict can have considerable difficulty in proving a person’s age or family composition, or proving that a person is missing or deceased. They can have great difficulty in providing reliable documentary evidence to support their claims. The problem in the present case is not merely that there is insufficient documentary evidence to satisfy the Tribunal about the claims that have been made. There is the greater problem that there are serious anomalies that have not been satisfactorily explained.
The Tribunal’s ultimate conclusion that [Mr A] and [Miss B] are not orphans means of course that even if the Tribunal were satisfied in relation to [Mr A]’s age and his relationship to [Mr C], [Mr A] would not meet the requirements for the visa. Nevertheless, the Tribunal records that while it is satisfied in relation to [Miss B]’s age and her relationship to the family, on the basis of the (reasonable) consistency of the claims and documentary evidence about that[3], the Tribunal is not satisfied in relation to [Mr A]’s age or his relationship to the family.
[3] See footnote 2.
No birth certificate or other evidence has been provided to show [Mr A]’s age. No evidence has been provided to show his relationship to the family. It is with regard to the latter issue that there is the more serious problem.
The Tribunal has noted the contradictory statements made in or in connection with previous visa applications about [Mr C]’s family composition. It has only been in connection with more recent applications, including the ones now under consideration, that [Mr A] has been mentioned.
This crucial issue was discussed during the April 2017 hearing. The presiding member referred specifically to the UNCHR Household Registration. [Mr C] said in effect that there was a “card” the showed everyone when the family was together. The context indicates that he may have been talking about a rations card. What [Mr C] said was that after his father disappeared and his mother left the camp with the other children he was the only one who remained, so the card showed only him. That is not a satisfactory explanation for the Household Registration not naming [Mr A], or for the previous visa applications not mentioning [Mr A], or for [Mr C] not mentioning [Mr A] when he was interviewed in 2007.
The Tribunal mentions that among the documents submitted to the Tribunal is a letter on behalf of a money transfer agency, dated 10 August 2016, that purports to confirm that [Mr C] has been sending $US 400 monthly to his “brother”, [Mr A] since 2010. That may be an indication of financial support by [Mr C] for [Mr A] at least, but it is of minimal probative value as to the relationship between them.
The contradictory evidence about [Mr A], and [Mr C]’s failure to explain that satisfactorily has a negative impact on the Tribunal’s assessment of the central claims that [Mr A] and [Miss B] are orphans. The Tribunal now addresses the evidence in support of those claims.
The Tribunal has noted that the primary decisions record that in his visa application [Mr C] stated that his mother and father went to Nairobi in 2005 (from the refugee camp) and did not return. This conflicts with claims that [Mr C]’s mother remained with the children but became unable to care for them. At the hearing [Mr C] simply denied that he had said at interview that his parents both left in 2005. But he also told the Tribunal that his father went missing almost 15 years prior to the hearing (which would be 2002 or thereabouts). In the written statement he provided after the hearing, [Mr C] said something different again. He said – twice - that the family lost contact with his father “around 2000”. [Miss D] gave oral evidence that she had not been told or could not remember anything about her father’s disappearance. ([Miss D] is not listed in [Mr A]’s visa application. In [Miss B]’s application it is stated that [Miss D] was born in 1994. On that basis [Miss D] would have turned 11 in 2005 making it unlikely, in the Tribunal’s view, that she would have no knowledge about what happened about her father).
[Mr C] told the Tribunal that his mother and his siblings left the refugee camp at the end of 2005. In his written statement he reiterated that the year was 2005. In contrast, the visa applications state that [Mr A] and [Miss B] left the camp in December 2007.
The delegate made an adverse comment about the lack of evidence of any effort to locate [Mr C]’s father. The Tribunal explored this point at the hearing, mentioning the possibility of tracing through the Red Cross or UNHCR. [Mr C] confirmed that he had not tried to trace his father through those organisations. His further evidence on the subject was unsatisfactory. [Mr C] said that it had been up to his father to say who the members of his “extended family” were so that inquiries could be made of those relatives and that he did not know who his father’s extended family was.
Considering the lack of evidence about the father’s disappearance, but more importantly the contradictions in the claims about the father’s disappearance, and the unsatisfactory evidence concerning the failure by [Mr C] at least to try to trace his father, the Tribunal is not satisfied that his father is of unknown whereabouts.
There are serious anomalies in the evidence regarding [Mr C]’s mother as well.
The Department’s files do not contain any medical or other expert evidence regarding [Mr C]’s mother’s health status or any documents regarding her death.
At the hearing in April 2017 [Mr C] gave oral evidence that his mother had died.
There are serious contradictions as to when and where [Mr C]’s mother died.
[Mr C] told the Tribunal that his mother died four years prior to the hearing (which would be 2013). He later said that 2013 was the year of her death. He said she died at the age of 55. (As the visa applications and other documents indicate that she was born in 1962 she would not have reached the age of 55 until the year 2017). [Mr C] said that his mother died in hospital. But at another point he said that she had high blood pressure and she died “on the spot” when there was a police raid at her home. In her oral evidence, [Miss D] said that her mother died in 2014. [Miss D] confirmed that her mother was born in 1962, but when she was asked how old her mother was when she died, [Miss D]’s response was to say that she could not count. [Miss D] said that her mother died when police raided the home: her mother was frightened, had a stroke, and died “on the spot”.
The documents that [Mr C] submitted after the hearing regarding his mother include a medical report ostensibly made by a cardiologist at [a] Hospital in 2010; a Permit for Burial ostensibly issued in 2014; and a Patient Release Form, ostensibly issued by [a] Hospital in 2014. [Mr C] also submitted a written statement by him dated 23 April 2017.
These documents raise further issues.
The cardiologist’s letter – in English - refers to [Mr C]’s mother as a “cardiac patient”. The letter then appears to use incorrect terminology for her heart valves – referring to “arterio” and “[v]entricular” valves. Whatever more might be said about that, that is not the only problem.

In his written statement [Mr C] said that his mother died “around 2014”. The Permit for Burial has a date stamp for 4 June 2014. The Permit records her date of death as 3 June 2014. But the Patient Release Form indicates that [Mr C]’s mother was admitted to hospital on 7 May 2014 and discharged on 4 June 2014. (The admission date is shown as 2014-05-07 and the discharge date is shown as 2014-06-04. Obviously, this cannot mean 5 July and 6 April: it must mean 7 May and 4 June). To claim that [Mr C]’s mother died “on the spot” when police raided her home implies that she died at home. [Mr C] said that she died in hospital. If his mother did die in hospital, and she died on 3 June, it would make no sense for the Patient Release Form to say that she was “discharged” on 4 June. (There is no indication at all that the document means to convey that [Mr C]’s mother died on some or other date and that her body was released on 4 June).
It is not necessary to pursue further the precise point about what “discharged” may mean. The problem goes beyond the anomalies that have been mentioned so far.
If it is correct that Mr[C]’s mother was in hospital from 7 May to 4 June 2014, as the Patient Release Form indicates, and if it is also correct that she died on 3 June, as the Permit for Burial indicates, she could not have died “on the spot” when police raided her home. This is because, according to the documents, her death occurred nearly a month after her admission to hospital and during the period of admission.
The result of these anomalies is that the Tribunal is not satisfied by the evidence, oral and documentary, that [Mr C]’s mother is deceased.
In summary, the Tribunal is not satisfied with regard to [Mr A]’s age and relationship to [Mr C] and his parents. But, in any event, the Tribunal is not satisfied that [Mr A] and [Miss B] are orphans. The Tribunal is not satisfied that the father is of unknown whereabouts or that the mother is deceased. The problem is not merely the lack of evidence in support of the visa applicants’ claims. The problem is also because of the several anomalies that have been discussed, a number of which are particularly serious ones.
The Tribunal has mentioned that there was a migration agent who was involved at the primary stage until her appointment was withdrawn in mid-2016. It is important to refer to the Form 956A that appears on [Mr A]’s file, by which [Mr C] notified the Department about the withdrawal of the appointment. [Mr C] said in the form that he was concerned that the representative had given him “incorrect advice”. [Mr C] did not elaborate. He did not assert, for instance, that the representative had given the Department information that was not correct or that the representative had failed to submit available documents to the Department. [Mr C] did not say to the Department that there was information that he wanted to correct or that there were documents that he wanted to submit. (On the other hand, at least by implication [Mr C] maintained at the hearing that he had given the Department all his documents and information).
In the Tribunal’s view, the problems in the case clearly go beyond any problems that could ever have been attributed to [Mr C]’s former representative.
The final matter to mention is the delay there has been since the visa applications were made, nearly four years ago, and the hearing was conducted, nearly two years ago. The delay is obviously unfortunate. The Tribunal however considers that, in the circumstances of the case, the delay has in no way impaired its capacity to give proper consideration to the case: see, for instance, MIAC v MZYNN [2012] FCA 1177 at [32]-[37].
Given the Tribunal’s findings, cl.117.211 and cl.117.221 are not met. The criteria for the grant of a Subclass 117 visa are not met.
There have been no claims advanced in respect of the other visa subclasses in Class AH.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.
John Billings
Senior 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.

[2019] AATA 1881

29 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction