Abdi (Migration) - [2023] AATA 1695

Abdi (Migration) [2023] AATA 1695 (8 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Sadiyah Abdi
VISA APPLICANTS:  Master Abdirahman Mohamed Abdullahi
Master Abdukadir Abdullahi Abdi
REPRESENTATIVE:  Ms Paghona Peggy Kerdo (MARN: 0801287)
CASE NUMBER:  1904485
HOME AFFAIRS REFERENCE(S):          2011092104 OSF2011092104
MEMBER:Brendan Darcy
DATE:8 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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.

Statement made on 08 June 2023 at 9:23am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – obtaining Somali death certificates – security situation in Somalia – Somali administrative capacity to record deaths – social media posts – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221, 117.311, 117.321; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.05, 1.12, 1.14
CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 December 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 7 November 2011. 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.
For the purposes of this decision, the review applicant will be referred to as the sponsor; the first named visa applicant will be referred to as the first applicant; and the second named visa applicant as the second applicant.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.].
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 because the definition of Orphan Relative under r.1.14 is not met.
The review applicant appeared before the Tribunal on 9 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from both of the visa applicants and a witness, Mr Abdirahman Ali, who claim to be a family friend.
The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdi (Migration)

Details

AGLC: Abdi (Migration) [2023] AATA 1695
Case: [2023] AATA 1695
Decision Date: 8 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Class AH) visa, Subclass 117 (Orphan Relative), made on behalf of two applicants. The sponsor, Ms. Sadiyah Abdullahi Abdi, an Australian citizen, claimed to be the aunt of the first applicant and the full biological sister of the second applicant. The visa application asserted that the parents of both applicants had died in Somalia, but the applicants were unable to provide official death certificates due to the security situation and lack of a functioning government in Somalia.

The primary legal issue before the Tribunal was whether the applicants had satisfied the requirements of Public Interest Criterion (PIC) 4020, which mandates that an applicant must not have provided bogus documents or false or misleading information in relation to their visa application. Specifically, the Tribunal had to determine if the absence of death certificates, in the context of the claimed inability to obtain them from Somalia, constituted a failure to meet the visa requirements. The Tribunal also considered evidence presented, including statutory declarations and statements from the applicants' representative, which explained the difficulties in obtaining documentation from Somalia.

The Tribunal reasoned that while the inability to obtain death certificates from Somalia due to the country's security situation and administrative capacity was a significant factor, it did not automatically absolve the applicants of their obligation to satisfy PIC 4020. The Tribunal noted that the Department had provided the applicants' representative with an invitation to comment on adverse information relating to PIC 4020. The Tribunal concluded that the matter required further consideration to ensure all aspects of PIC 4020 were adequately addressed, particularly in light of the evidence concerning the security situation in Somalia and the administrative challenges in obtaining official documents.

Consequently, the Tribunal remitted the matter for reconsideration. This decision indicates that while the circumstances in Somalia present challenges, the applicants must still demonstrate compliance with the visa criteria, and the Tribunal found that further assessment was necessary to achieve this.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The sponsor, Sadiyah Abdullahi Abdi, was born on 1 January 1992 in Kismayo in the Republic of Somalia (Somalia). She migrated to Australia on a AH Subclass 117 Orphan Relative visa in 2008 and was had Australian citizenship conferred on her on 2014. On 7 November 2011, the sponsor lodged an application for Child (Class AH) Orphan Relative (Subclass 117) visas on behalf of the visa applicants. A statutory declaration dated 13 October 2011 was attached to the visa application in which the sponsor claimed that the first applicant was born on 10 June 1995 in Somalia. and that his biological father, Mohamed Abdullahi Abdi, was killed in 2004 while his biological mother, Sadia Osman, was later killed. The sponsor claimed that she was the aunt of the first applicant as her half-brother had been the father of the first applicant. (A half-sister and the sponsor shared the same biological father but had different biological mothers as a result of a polygamous marriage. There was a DNA (Deoxyribonucleic acid) test to establish their relationship in that earlier Subclass 117 visa application.) The sponsor further claimed the second applicant to be born on 20 August 1995 in Somalia and the second applicant is her full biological brother. It was further claimed that their common biological father, Abdullahi Abdi Aden, died in 2004 of natural cause and that his mother, Dhakan Ahmed Ibrahim, had also died of natural causes in 2010. They both claimed to have travelled to Kenya in 2011 and to have obtained refugee cards. Statutory declarations were provided to the Department stating; ‘We do not have death certificates to confirm my parent's death as it is not possible to obtain these from Somalia due to the lack of a functioning government. In relation to Abdirahman Abdi, his father was my biological brother. Both of his parents have passed away. Again, I do not have death certificated to confirm this due to the inability to obtain such information from Somalia’. A statement from the applicant’s representative stated; ‘Ms Abdi's father passed away in 2004 however there is no documentation to support this as it is virtually impossible to obtain such information from Somalia ... In relation to Abdirahman, Ms Abdi's nephew, both of his parents have passed away however we do not have death certificates to support this’. The applicants were interviewed in Nairobi at the Australian High Commission on 27 June 2013. A copy of the transcript was provided to the parties’ representative. On 23 October 2014, the Department forwarded separate letters to the representative to each of the outlined adverse information outlined as invitation to comment on information relating to the Public Interest Criterion 4020 (PIC 4020). It is a requirement for the grant of a subclass 117 Orphan Relative visa that the PIC 4020 under Schedule 4 of the Regulations is satisfied. Specifically PIC 4020(1) requires no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officers of the Commonwealth, be a bogus document or information that is false or misleading in a material particular in relation to the application for visa or a visa held by applicants in the last 12 months before the current application was made.