Abbas (Migration)

[2019] AATA 3289

Abbas (Migration) [2019] AATA 3289 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Deeqo Abbas

VISA APPLICANTS:  Ms Fadumo Mohamed Abbas
Master Hassan Mohamud Hirabe
Master Khalid Mohamud Hirabe

CASE NUMBER:  1702229

DIBP REFERENCE(S):  OSF2012/049417

MEMBER:Kira Raif

DATE:25 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 25 June 2019 at 11:35am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 115(Remaining Relative visa)– no evidence of deaths of relatives – no evidence of divorce – provided untruthful evidence –not satisfied that visa applicant had no near relatives –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 1, Schedule 2, cls 115.211, 115.221, 115.321

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 4 December 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Somalia. The first named visa applicant (‘the visa applicant’) was born in January 1981. She applied for the visa on 7 February 2012. The application includes her two minor children.

3. The delegate refused to grant the visas on the basis that cl.115.221 was not met because the delegate was not satisfied the visa applicants were remaining relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

4. The review applicant appeared before the Tribunal on 29 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 115 visa which requires the primary visa applicant to be the remaining relative of an Australian relative. The criteria for a Subclass 115 visa are set out in Part 115 of Schedule 2 to the Regulations.

6. The visa application was made on the basis that the visa applicant is the remaining relative of the sponsor, who the visa applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: r.1.03. ‘Relative’ is also defined in r.1.03 and means a ‘close relative’ as defined, or a grandparent, grandchild aunt, uncle or niece or nephew (or their step equivalents).

7. To be granted a Subclass 115 visa the visa applicant must be a ‘remaining relative’ of an ‘Australian relative’ at time of application, and continue to be a ‘remaining relative’ at time of decision: cl.115.211 and cl.115.221.

8. ‘Remaining relative’ is defined in r.1.15 of the Regulations. Broadly speaking, an applicant will be a remaining relative of an Australian relative if that person is a parent, brother, sister, step-parent (for visa applications made prior to 1 July 2009), step-brother or step-sister of the visa applicant and is ‘usually resident in Australia’. The visa applicant, together with his or her spouse or where relevant, de facto partner, must also have no ‘near relatives’, with the exception of certain relatives in Australia. Additional provisions apply if the visa applicant is an adopted child.

   Is the visa applicant a remaining relative of an Australian relative?

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

10. The visa applicant claims to be the sister of the sponsor and was declared by the sponsor in her own visa application made in 2009 as a sibling.

11. The visa applicant stated on the application form that she is divorced. She was requested, but was unable to provide evidence of her divorce. The visa applicant also stated that both of her parents and her brother were deceased. The visa applicant has not provided any documentary evidence of these deaths. The delegate wrote to the visa applicant requesting further evidence of her divorce and of the deaths of her parents and brother. The visa applicant has not provided any official records of deaths, stating that these were not available as they were Somali refugees residing in Saudi Arabia. The visa applicant also claimed to have been unable to obtain evidence of her divorce.

12. In her undated written submission to the delegate the visa applicant outlined the family background. She states that the family lived in Kismayo and with the political tensions arising, their father became a target and the family was attacked by the local militia. Her father was killed in the presence of his wife and children while their mother was gang-raped. The sponsor later escaped to Liboye where she remained and later married. After the breakdown of her marriage, the sponsor moved to a refugee camp with the children and in 2009 was granted a humanitarian visa to Australia. After arriving in Australia, she was able to resume her search for the family. She received news that her brother Ahmed did not escape and was killed in their home town of Kismayo. The sponsor found out that her sister fled to Saudi Arabia where she was smuggled by boat and where she remained illegally. She married and had two children but eventually the marriage broke. They could not approach ‘the appropriate courses’ for fear of deportation but did so under the Islamic law and had severed all ties with one another. The visa applicant told her sister that she had since returned to Somalia. The visa applicants continue to live in Saudi Arabia as illegals and cannot get any assistance or guidance.

13. There is a statutory declaration from the sponsor outlining these circumstances, and a family tree diagram.

14. The delegate formed the view that the claim that divorce evidence was unavailable was implausible, given the visa applicant’s ability to legally marry her husband in Saudi Arabia under the Sharia law. The delegate notes that the visa applicant was requested to provide her and the sponsor’s contact details to enable an interview to take place but this was not done. Ultimately, the delegate was not satisfied that the visa applicants had no near relatives other than those living in Australia.

15. The review applicant provided further evidence to the Tribunal on 23 May 2019. The review applicant provided to the Tribunal a copy of the family tree and outlined the visa applicant’s family composition. The review applicant states that around 1992 she fled Somalia and subsequently came to Australia. In 1997 the visa applicant fled Somalia, following the deaths of her mother and brother. She married but later divorced her husband Mohamed Hirabe Mohamed in May 2009. Her husband was deported to Somalia from Saudi Arabia while the visa applicant remains in Saudi Arabia where she resides illegally with her two sons.

16. The review applicant states that the visa applicant’s family comprises her two parents and two siblings. Her father died during the civil war around 1993 as he was identified as a Kurdish affiliate and was murdered by the militia. There is no record of his death given the turmoil at the time.  It is stated that the applicant did not see her mother again after she was told to flee but it is believed the visa applicant’s mother was sick for a long time due to a kidney condition and died of diabetes around 1996. There is no record of her burial. The review applicant states that her brother Ahmed was caught up in the conflict and was killed around 1996. The Tribunal is mindful that the review applicant’s submission to the Tribunal  does not address the issue of the visa applicant’s divorce, nor provide any additional material to evidence the visa applicant’s divorce.

17. The review applicant told the Tribunal in oral evidence that she entered Australia as a holder of a Humanitarian visa. She said that she was single when she made the application and was granted the visa around June 2009. She had divorced her husband a long time before she made the visa application. The review applicant confirmed that her children sponsored her ex-husband and he is in Australia but has never lived with them.

18. The review applicant confirmed that she did not declare her eldest daughter Sundus in her own application. She claims this was because this child had a different father to the other children and also because she had an altercation with this daughter’s father. However, the Tribunal is mindful that the application forms required an applicant to declare all children, not the children that she wished to declare. The review applicant’s failure to declare her daughter in her visa application suggests to the Tribunal that the review applicant is willing to provide untruthful evidence to the Department in pursuit of a favourable migration outcome.

19. The review applicant told the Tribunal that she last saw her sister in 1992. That year, her father was attacked and murdered. Her mother had been assaulted and the review applicant said she ran away. She travelled to Nairobi. In 1996 she heard from her mother, who told her that her father was murdered and her brother Ahmed was also murdered in 1996. Her mother was sick because of the trauma she experienced and later on she died from diabetes. Her sister escaped and travelled to Yemen and then Saudi Arabia. In 2001 her sister married and later had two children. Later on, her sister communicated with her and after coming to Australia, she sponsored her sister. The review applicant said that her sister was removed from Saudi Arabia to Somalia and she now lives in a refugee camp.

20. The review applicant said that she knew nothing about the whereabouts of her sister’s ex-husband. They were married in Saudi Arabia but she did not think they were legally married because her sister was illegal in Saudi Arabia. The review applicant said her sister was married under the Islamic law before the imam and witnesses and the divorce was also done under the Islamic law. The Tribunal acknowledges that if the parties did not arrange a legal marriage and divorce, there may be no evidence of the marriage and divorce in the civil records. However, it is not clear why there would be no evidence of the religious marriage and divorce. The representative submits that a Somali divorce document may be available and provided and following the hearing, the review applicant provided to the Tribunal a copy of the visa applicant’s divorce certificate issued by Waberi District Court on 22 June 2019.

21. The review applicant told the Tribunal that after her sister moved to Somalia, she approached an imam who communicated with the ex-husband and then confirmed the divorce. The Tribunal is concerned that such a document would have been issued by a person who has neither witnessed, nor officiated the divorce. The imam would have acted purely on advice of the visa applicant or her ex-husband about the circumstances of their relationship, with no independent verification of the divorce. Given that such representations would have been made in the course of this visa application and after the primary application was refused, the Tribunal considers such reporting to be self-serving and unreliable.

22. The divorce certificate itself refers to two witnesses and states that the parties divorced in front of an authorised judge in May 2009. This appears to contradict the review applicant’s oral evidence to the Tribunal when she claimed that either the visa applicant or her husband approached an imam and told the imam of the divorce. The divorce certificate presented by the applicant does not explain on what basis the document was issued or what records, if any, were consulted, particularly given the delay between the claimed divorce and the issuance of the certificate. The Tribunal is also concerned by the fact that the divorce certificate was issued in June 2019, years after the claimed divorce and during the processing of the visa application. The document appears to have been issued for the purpose of the present application and, in the absence of a satisfactory explanation of how the information became known to the writer or the basis on which it was issued, the Tribunal is not satisfied that the divorce certificate dated 22 June 2019 is probative evidence of the visa applicant’s divorce. The Tribunal is not satisfied that at the time the application was made, the visa applicant had divorced her husband.

23. The review applicant told the Tribunal that she was not aware of the family composition of the visa applicant’s husband. As the Tribunal is not satisfied the visa applicant had divorced at the time the application was made, the Tribunal finds that the visa applicant had a spouse or a de facto partner. There is no evidence of his residence in Australia. The Tribunal is not satisfied that at the time the application was made, the visa applicant, and the applicant’s spouse or de facto partner, had no near relatives other than near relatives who were usually resident in Australia and were Australian citizens, Australian permanent residents or eligible New Zealand citizens. The Tribunal is not satisfied the visa applicant meets r. 1.15(1)(c) and that she is the remaining relative of an Australian relative.

24. With respect to her brother and parents, the review applicant told the Tribunal there are no death records because her brother and father were murdered by the militia. Her mother was buried soon after her death, there was no doctor and no one to issue the death certificate. The review applicant said there is no evidence of the burial because of the civil war. The review applicant told the Tribunal that she cannot obtain any official evidence of deaths. It was her mother who told her about the deaths of her father and brother and she trusts her mother. In relation to her mother’s death, the review applicant said she received information from a neighbour and she trusts this neighbour.  She said there are no records available but she can swear on the Holy Koran about the deaths. The representative submits that given the civil war at the time, it was not possible to have any formal documents issued.

25. On 24 June 2019 the review applicant presented to the Tribunal a death certificate relating to her mother, dated 20 June 2019. No explanation has been offered by the review applicant as to how this document was obtained, given her oral evidence that a death certificate is not available and cannot be made available and that there was no record of death. The Certificate is issued by the local government and indicates that it was issued on the basis of ‘records in my office’. It is not clear what such records may be, given the review applicant’s evidence. In the absence of a satisfactory explanation of how this document was issued in June 2019, and given the review applicant’s assurances that death records were not available, the Tribunal does not consider this death certificate to be probative evidence of her mother’s death.

26. There are also no probative records of the deaths of the visa applicant’s father and brother. The Tribunal acknowledges the review applicant’s evidence that records are not available but the Tribunal is not prepared to accept the visa applicant’s or the review applicant’s evidence unquestioningly. On the limited evidence before it, the Tribunal is not satisfied the visa applicant’s father and brother had been killed. For that reason also, the Tribunal is not satisfied that the visa applicant has no near relatives other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

27. The Tribunal Is not satisfied the visa applicant meets r. 1.15(1)(c) and that she is the remaining relative of an Australian relative. The Tribunal is not satisfied the visa applicant meets cl. 115.211 and cl. 115.221. The secondary applicants do not meet cl. 115.321 and there is no evidence to suggest that they meet the primary criteria for visa grant.

28. There is no evidence that the visa applicant is a carer of an Australian relative and there is no relevant Carer certificate. The visa applicant is not old enough to be granted an aged pension for the purpose of the Aged Dependent Relative visa. The Tribunal is not satisfied the visa applicant meets the requirements for the grant of the Carer visa or an Aged Dependent Relative visa.

    Conclusion

29. For the reasons above, the visa applicant does not meet the criteria for a Subclass 115 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicant meets prescribed criteria for the visa sought.

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Kira Raif
    Senior Member