Abdala (Migration)

[2017] AATA 2827

Abdala (Migration) [2017] AATA 2827 (22 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sabri Mustafa Hassan Abdalla

VISA APPLICANTS:  Miss Mawada Idris Abdalla

Master Mustafa Abdalla
 

CASE NUMBER:  1716409

DIBP REFERENCE(S):  OSF2015062861

MEMBER:Adrienne Millbank

DATE:22 December 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 22 December 2017 at 12:46pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Applicants’ mother’s disappearance – Applicants’ father’s death certificate – Unreliable witness – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cl 117.211

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 12 July 2017 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 10 November 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.

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, which requires that the applicant is an orphan relative of an Australian relative of the applicant.

4. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 of Schedule 2 to the Regulations. The Delegate found that the applicant had failed to provide satisfactory evidence regarding her mother’s disappearance and her father’s death, and was therefore not satisfied that the applicant met Regulation 1.14.

5. The review applicant (the sponsor) appeared before the Tribunal on 24 November 2017 and 6 December 2017 to give evidence and present arguments. At the second hearing on 6 December 2017 the Tribunal took evidence from the first-named applicant, the sponsor’s niece, in Sudan. The Tribunal hearings were conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

6. At both hearings the Tribunal advised the sponsor, pursuant to s.359AA of the Act, that it had information that would lead or would contribute to the decision under review being affirmed. The Tribunal advised that this information was in the record of interviews conducted by the Department with him and with the first-named applicant, the sponsor’s niece; in written statements provided at the time of application as well as to the Tribunal; and in his and his niece’s application forms. The Tribunal advised that it was particularly concerned regarding inconsistencies in stories provided at different times about the applicants’ mother’s disappearance; that it would be asking questions and raising questions based on the information that it had; and that when it did the sponsor could seek an adjournment to consider his response. The Tribunal advised the sponsor that it also had access to his international movement records. The applicant did not seek an adjournment at either hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicants were born in Sudan in 1998 and 2005. They were 17 and 10 years old at the time of application, and 19 and 12 at the time of decision. The sponsor, their uncle, was born in Sudan in 1970, and migrated to Australia in 2005 under the Refugee and Humanitarian Program. He obtained Australian citizenship by grant in 2007.

9. The sponsor claimed that before the applicants’ mother’s death the applicants lived with their older siblings and mother in Khartoum. He claimed that his brother, the applicants’ father, a customs officer who had been posted to Wau in 2011, died in Wau of natural causes on 29 July 2012. He claimed further that when the applicants’ mother went missing some days later, responsibility for their support and upbringing passed to him.

10. The parties claimed variously that the applicants’ mother left the residence in Khartoum where she lived with the applicants and their older siblings on 5 August 2012: to attend her husband’s 40-day funeral in Juba; to obtain his burial and death certificates from Wau; or to go to Wau to find out what happened. They claim that she was never seen again.

11. The issue in the present case is whether the applicants are in fact orphan relatives as defined in the Regulations, who cannot be cared for by either parent because each of them is either dead or of unknown whereabouts.

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

12. Clause 117.211 requires that at the time of application a 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.

13. ‘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 applicant’s uncle, an Australian citizen, is the relevant Australian relative.

14. For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are not orphan relatives of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met.

    No parental care – r.1.14(b)

15. Regulation 1.14(b) requires that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

16. The Delegate as noted was not satisfied with the evidence provided regarding the applicants’ father’s death and mother’s disappearance. At the time of application the sponsor provided a death certificate stating that the applicants’ father died of congestive heart failure on 29 July 2012; a burial certificate stating that he was buried at Wau the same day; a Sudanese Crime Circular stating that the applicants’ mother was reported missing on 5 August 2012; and a Khartoum General Court affidavit sworn by the applicants’ grandmother and guardian.

17. Advice from the Department’s visa integrity unit was that the death certificate and burial permit were similar in format to local genuine samples. The Delegate however gave no weight to the death certificate as it did not include an issue date, and no weight to the circular, deeming it implausible that it would be issued on the same day that an adult person went missing. The Delegate noted that the Khartoum General Court document was not a court order or verdict regarding the death of the applicants’ father or the missing status of the applicants’ mother, but was instead an affidavit sworn by the applicants’ guardian, an interested party.

18. To the Tribunal, the sponsor provided a list of customs officers reinstated in 2011, indicating that the applicants’ father was posted to Wau in South Sudan in November 2011.  The sponsor provided also a copy of what appeared to be an employment reference for his brother with some word changes so as to acknowledge that he was in fact dead. This document, with the letterhead of the Office of the Director for Administration, South Sudan Customs Service Headquarters, Juba, signed by the head of Human Resource Management and the Director of Administration on 20 October 2017 and addressed ‘To whom it may concern’, advised that the applicants’ father: ‘served with this institution for since 1984and died 2012. … This recommendation issued without reservation; from my past experiences with (the applicants’ father) he was be a valuable part of our team and make a great asset to our organisation… Your usual attention to this regards will be appreciated’. (Sic)

19. Regarding the applicants’ mother, the following statements were provided:

    • At the time of application the sponsor declared in a written submission that when his brother’s widow went missing he travelled three times to South Sudan and conducted ‘massive searches’ each time.
    • In interview with the Department on 29 October 2015, the older applicant, who was 17 at the time, stated that on 5 August 2012 her mother ‘went to the South after we heard that father passed away’, and that she ‘travelled to find out what happened to him’. When asked whether she or her grandmother reported it to the police she stated ‘we called people there however could not find her’.
    • In a telephone interview conducted by the Department on 13 January 2016 the sponsor, when asked how he knew his sister-in-law was missing in Juba, stated that when he went to Wau after his brother’s death ‘I didn’t find her there’. He stated further ‘our far relatives and their neighbours told me that she left Khartoum, she should have gone to Juba by car then to Wau, so she went missing in Juba. She disappeared for weeks then one of our far relatives reported that at the police’.
    • To the Tribunal, the sponsor provided a written statement in which he stated that his sister-in-law left home early in the morning of 5 August 2012 to catch a flight to Juba, with the intention of catching another flight to Wau. He claimed that when she didn’t arrive in Juba a distant relative, who was waiting to meet her at the airport, called the sponsor in Australia, who advised him to call the police and report her missing, immediately.

20. When the Tribunal asked why the distant relative called him in Australia on the day his sister-in-law went missing, he stated that the distant relative knew that he was the person responsible for the youngest two of his brother’s children, who had not reached 18 years. He confirmed that at the time the applicants’ maternal grandmother and their two older siblings were living with them. The Tribunal pointed out that the older siblings were, at the time of decision, 22 and 23 years old. The Tribunal asked why the applicants’ older siblings, or their grandmother, had not obtained a court order registering the mother’s disappearance. The sponsor responded that the grandmother was in her eighties and too old and frail to deal with court processes. He acknowledged that the applicant’s older brother could have gone to the courts, but argued that he was younger at the time of application.

21. When the Tribunal asked the first-named applicant, the sponsor’s niece, how old her grandmother is, she replied that her grandmother is 69 years old. The Tribunal asked the sponsor to explain why he had advised that the grandmother is in her eighties. He stated that ‘she looks older’.

22. The Tribunal asked the sponsor whether he had any remaining brothers or sisters in Sudan. He stated that he had a sister but she died long ago. The Tribunal asked when she died and how old he was when she died. He stated that he couldn’t remember, but then claimed that she died in 1987 or 1998, when he was 27 or 28 years old. The sponsor was born in 1970 and would have been 17 in 1987. When asked if his sister-in-law had any sisters and brothers, he advised that they had all died as well.

23. When the Tribunal asked the first-named applicant what had happened to her aunt, her father’s (and the sponsor’s) sister, she replied that her father had never had a sister, that her mother had no siblings, and that she ‘had no-one’ apart from the sponsor.

24. The Tribunal found the older applicant, the sponsor’s niece, unresponsive and evasive when answering questions. When asked why she had not told the Department, in interview, that her mother had told her that she was catching a plane to Juba, she stated, after some time, that no-one had asked her. When asked who in the family had gone to the police, and why no-one in the family had sought a court order regarding her mother’s disappearance, she stated, after some time, that the police couldn’t find her.  

25. The Tribunal asked the sponsor why he had not gone to his brother’s funeral in Wau. He said no family members had attended his brother’s burial on 29 July 2012, which was on the same day he died. He advised that he attended his brother’s ’40-day funeral’, held on 17 August 2012 in Juba. He advised that this was an important social ritual; that it had been too dangerous for the children to attend but imperative for his sister-in-law; and that it was in fact for the purpose of attending this funeral in Juba that his sister-in-law had left Khartoum on the morning of 5 August 2012.

26. At the first hearing the Tribunal asked the sponsor whether he had checked with the Sudanese airline companies to see what flight his sister had caught from Khartoum to Juba.  The sponsor replied that he hadn’t thought of doing this. The Tribunal asked about the relative who was meeting her at the airport. He then stated that there was only one flight a day to Juba, and that his relative was waiting outside of the airport and so didn’t know whether she got off the plane or not. He claimed that none of the four children in the house knew whether his sister-in-law had purchased an airline ticket, and neither did their grandmother, who was caring for them. He claimed that no-one knew whether she caught a taxi or a bus or whether a neighbour had given her a lift to the airport. He confirmed that his sister-in-law did not have a car and couldn’t drive, and that she was a housewife.

27. The Tribunal asked the sponsor why, in the light of testimony provided to the Tribunal regarding his sister-in-law’s assumed travel arrangements, he had stated in a telephone interview with the Department on 13 January 2012 that his sister-in-law had travelled to Wau by car and that she wasn’t reported missing until some weeks later. He responded that he had no recollection of this interview. He advised that he did not need an adjournment to consider his response. He repeated that he had no recollection of the interview.

28. The Tribunal asked the sponsor why he had not listed his brother as a sibling when he applied to migrate to Australia in 2004. He responded that he didn’t think it was necessary because his brother had a good job as a customs officer and wasn’t intending to migrate. The Tribunal asked the sponsor why his niece had not listed the second-named applicant as her brother in her application: why she had listed as her siblings only her older brother and sister. He stated that he didn’t know why she had not listed her younger brother as a sibling on the prescribed form. At the second hearing the Tribunal asked the first-named applicant why she had not listed her younger brother as a sibling on the prescribed form. She stated that her uncle, the sponsor, had filled in the form and she didn’t know why he hadn’t listed her younger brother as a sibling. The Tribunal asked the sponsor why, in a statutory declaration signed in 2014 declaring himself as the sole source of support for his youngest niece and nephew, he gave their ages as 11 and 14. In 2014, the younger applicant would have been nine years old. The sponsor advised that an agent in Sudan had assisted him to prepare the paperwork and obtain documents for the application.

29. At the second hearing the Tribunal again put to the sponsor that the information he provided in interview with the Department on 29 October 2015 regarding the disappearance of the applicants’ mother was different from the information that he provided to the Tribunal. The Tribunal advised the sponsor that it had concerns regarding the discrepancy and the reliability of his testimony. The sponsor stated that the information in the record of interview must have been incorrectly recorded. He stated that he would not have said that the applicants’ mother went anywhere by car, because she couldn’t drive, and that his most recent statements to the Tribunal were correct. No evidence was before the Tribunal that would indicate that the interviews with the sponsor and the first-named applicant were not conducted with the usual protocols, and that they are not an accurate record of what they said.

30. The Tribunal is of the view that the parties fabricated the story regarding the mother leaving the family house in Khartoum to catch a plane in response to the Delegate’s finding that it was not credible that a police report would be issued on the same day and in the circumstances originally claimed she went missing.  No evidence was provided that the applicants’ mother had booked a ticket to fly to Juba. The sponsor acknowledged that no-one had sought advice from the airline as to whether she had reserved a seat or boarded a flight. The Tribunal does not accept the sponsor’s claim that in Sudan there are no passenger lists or records of bookings.

31. The Tribunal finds the stories regarding the applicants’ mother’s disappearance to be inconsistent, weak, implausible, and unconvincing. The only evidence of the mother’s disappearance, apart from the statements and affidavits provided by interested parties, was the crime circular or police report which recorded that her disappearance had been reported. The Tribunal gives no weight to this document because the applicant’s mother’s disappearance was reported to the police—on the day she supposedly went missing—by interested parties. The Tribunal finds the sponsor and the first-named applicant were unreliable witnesses, and does not accept that they provided truthful testimony. For these reasons the Tribunal is not satisfied that the applicants’ mother is of unknown whereabouts.

32. The Tribunal asked the sponsor at hearing why he had not obtained a death certificate for the applicant’s father with an issue date, as well as a court order regarding the applicant’s mother’s disappearance, following the Delegate’s decision. The sponsor stated that he could obtain more documents if it would assist the Tribunal. The Tribunal provided the sponsor with fourteen days, until 20 December 2017, to provide any further evidence in support of his claim that his niece and nephew are orphan relatives. On 18 December 2017 the sponsor wrote to the Tribunal requesting another two weeks to obtain documents. The sponsor has been on notice since 12 July 2017 regarding problems with the documentary evidence provided. The Tribunal did not agree to his request for an extension of time.

33. The Tribunal does not accept on the basis of the evidence and stories provided that the applicants are orphan relatives.  

34. Accordingly, r.1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

35. Given the findings above, cl.117.211 is not met.

36. For these reasons, 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

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

    Adrienne Millbank
    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.