Abdosh (Migration)

[2020] AATA 4908

Abdosh (Migration) [2020] AATA 4908 (11 September 2020)

CASE NUMBER:      1823452

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kifaya Abdosh

VISA APPLICANTS:  Miss Nassiya Mohamed Abdosh
Miss Haniya Abdosh

CASE NUMBER:  1823452 formerly 1517747

DIBP REFERENCE(S):  OSF2014/044548

MEMBER:Nicholas McGowan

DATE:11 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made 11 September 2020 at 11:22pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Federal Court remittal – orphan relatives of the sponsor – applicant under 18 years – evidence of ages of the applicants – evidence of sister relationships to the review applicant – Ethiopian birth certificates – applicant cannot be cared for by either parent – death certificates for both parents – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 360, 365, 366
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Nguyen v MIMA (1998) 158 ALR 639

REVIEW

1. On 1 October 2014 the visa applicants applied for Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. On 16 December 2015 a delegate of the Minister for Immigration made a decision to refuse to grant the visa applicants the visas.

3. 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 only. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate refused to grant the visas to the applicants for separate reasons.

5. The applicants matters had been determined by the Tribunal previously, on 23 October 2017, by Member Urquhart, though the review applicant appealed those decisions to the Federal Court, which on 8 August 2018 Ordered the Tribunal to reconsider and determine the matters according to law.

6. The Federal Court noted the Tribunal’s decisions dated 23 October 2017 were affected by jurisdictional error as the Tribunal took into account ‘irrelevant’ information (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24), namely the email from Aussie Immigration Services dated 12 September 2016 and its attachments. As a result, the Tribunal incorrectly proceeded in accordance with s 360(2)(b) of the Migration Act 1958 (Cth) (Act) in circumstances where it did not have the applicants consent to the Tribunal deciding the review without the applicants appearing before it, and therefore breached section 360(1) of the Act by not inviting the applicants to a hearing.

   Invitation to a hearing

7. Under Section 360 of the Migration Act the review applicant must be invited to appear before the Tribunal, except in limited circumstances which are not applicable in this matter.

8. On 17 August 2020, the Tribunal wrote to the review applicant and invited her to appear before a public hearing to provide evidence and present arguments. The review applicant was invited to attend the public hearing because the Tribunal had considered the material before it and had been unable to make favourable decisions on that information alone.

9. A hearing to consider and reviews was conducted on 10 September 2020 in Melbourne. Because of the SARS-CoV-2 pandemic, and the Victorian state government restrictions presently in force, the Tribunal conducted this hearing via telephone. The Migration Act 1958 gives the Tribunal the authority to conduct matters in this way: Section 366(1).

10. Consistent with section 365(3) of the Migration Act 1958 the Tribunal conducted the hearing without opening it to the public as it is satisfied that during the SARS-CoV-2 pandemic it is impracticable to take oral evidence in public. Accordingly, the Tribunal directed that all the evidence from the participants in these reviews, be taken in private.

11. The review applicant appeared before the Tribunal on 10 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from a witness. The first named visa applicant joined the hearing, though she was not present wen the Tribunal provided an opportunity for her to provide oral evidence. The representative was provided with the opportunity to seek further occasion to provide further evidence, or seek additional time to do so, but did not make a request for either.

12. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

13. The review applicant was represented in relation to the reviews by her registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    First named visa applicant

14. The delegate of the Minister refused to grant the first named visa applicant the visa because the delegate found she did not meet cl.117.211. Specifically, the delegate found the first named visa applicant did not meet regulation 1.14(a)(i). The delegate found the applicant had not met regulation 1.14(a)(i) because the delegate was not satisfied the applicant was under 18 years of age at the time of application (1 October 2014).

    Are the visa applicants an orphan relative of an Australian relative?

15. Clause 117.211 requires that at the time of application the visa applicant(s) 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(s) 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.

16. ‘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(s) who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111.

17. 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 [emphasis added] (step-relationships are also included): r.1.03. 

18. In the present case, the review applicant, is the relevant Australian relative to both the first and second named visa applicants, as she claims to be their sister for the purposes of r.1.14(a)(iii).

19. In considering of regulation 1.14(a)(iii), the Tribunal notes the review applicant has not provided any historical evidence to illustrate that she is related to the applicants, though she did list both as her sisters in her own Partner visa application to migrate to Australia lodged in 2011 (case number OSF2011/040082). While not definitive, given this previous declaration, the Tribunal finds it appropriate in the circumstances to take the claim at face value, particularly as there is no evidence or claim by the Departmental officers that the biological claim is somehow non-genuine. That said, the Tribunal echoes the delegate’s notation (in the decision record of the second named visa applicant) that scientific evidence - namely genetic evidence - may assist prior to the grant of any visas.

20. Given the above, the Tribunal accepts that the past and current information presently before the Tribunal supports the applicants claims they are the sisters of the review applicant, and accordingly, the Tribunal finds they meet regulation 1.14(a)(iii).

    Age – r.1.14(a)(i)

21. Regulation 1.14(a)(i) requires that the first named visa applicant has not turned 18.

22. On the application for the visa under review, the first named visa applicant declared her date of birth as 20 October 1996, making her 17 years 11 months and 12 days at the ‘time of application’.

23. Based on a copy of the delegate’s refusal decision of 16 December 2015 - a copy of which was provided by the applicant to the Tribunal as part of this review (contained on the applicant’s Tribunal case file 1517747) - on 12 August 2015 the Department had regard to a previous application (OSF2011/040082) for a visa where the same sponsor (the review applicant), listed the first named visa applicant and declared the first named visa applicant’s date of birth as 1 January 1996. That information was put to the applicants (by the delegate) under natural justice provisions in the Act (and regulations) and responded to by them.

24. It is clear from the delegate’s decision record that the first named visa applicant and review applicant restated their claim the date of birth for the first named visa applicant is 20 October 1996. The explanation for the discrepancy (between the dates 1 January 1996 and 20 October 1996), was that the date of birth ‘1 January’ could be attributed to her sister’s (review applicant’s) husband, who did not know the first named visa applicant’s date of birth, but completed the earlier visa application form (on behalf of the review applicant). The first named visa applicant added, that as her sister (the review applicant) did not have a face-to-face interview, that opportunity to correct the date did not present itself.

25. The Tribunal notes the review applicant signed the previous visa application forms (for case number OSF2011/040082) thereby legally attesting to the authenticity of all the information, including the date and month of birth of her sister (the first named visa applicant). The Tribunal also notes the review applicant’s oral evidence to the Tribunal on 10 September 2020 was that she did not look at the page where the date of birth was filled-in, before she signed the application.

26. In support of the visa applications under review, the review applicant provided the Minister with a copy of the first named visa applicant’s Ethiopian birth certificate (contained at folio 30 of Departmental file OSF2014/044548) and Ethiopian passport (contained at folio 31 of Departmental file OSF2014/044548).

27. The birth certificate was issued 24 June 2014. The birth certificate states the applicant’s date of birth is 10/2/1989 (Ethiopian calendar) translated as 20/10/1996 (Gregorian date).

28. The passport was issued on 3 February 2015. The passport states the applicant’s date of birth is 20 October 1996.

29. Both documents were obtained after the review applicant’s visa application OSF2011/040082, and after the Minister’s delegate requested from the first named visa applicant (in respect of the present visa application) additional information (evidence) in support of her claimed date of birth. The Minister’s delegate observes in the refusal decision record that, “The Department is aware that to obtain a birth certificate in Ethiopia, applicants need only make a statement to officials at the registry and a birth certificate is issued.” The Minister’s delegate also noted, “The passport was issued on the basis of information contained in the birth certificate;…”.

30. In the applicant’s submission to this Tribunal dated 26 August 2020, the first named visa applicant’s representative reiterated the review applicant’s husband completed the earlier (Partner visa) application (and in doing so, made the error in declaring the incorrect date of birth for the first named visa applicant). The representative also drew attention to the incorrect date provided for the second named visa applicant (relative to the Ethiopian birth certificate later provided as part of the present visa application). The representative argued in the submission to the Tribunal that as the second named visa applicant had not been denied the grant of the visa because of concerns with respect to her age (despite the incorrect date of birth also given in the previous Partner visa application) and now based (for the present visa application) on a copy of her Ethiopian birth certificate, the first named visa applicant’s Ethiopian birth certificate (and birth date) should also be accepted.

31. The Tribunal does not accept the representative’s argument as outlined in his submission of 26 August 2020. The Tribunal will address its own consideration (review) of the second named visa applicant’s application below, however, as the reviews in respect to both applicants are de novo, the delegate’s decision merely indicates to the Tribunal for the basis for the refusal decisions. Under law, the Tribunal is required to make a new, and completely independent decision which takes into consideration all of the evidence. To assist with the applicants understanding of the assessment process (and confidence in it), and by way of observation only, the Tribunal notes it is open to a decision-maker (including the Minister’s delegate) to take a differing approach to the individual circumstances of each application.

32. In respect to the first named visa applicant’s visa application the Tribunal must be satisfied regulation 1.14(a)(i) is met. Specifically, the Tribunal must be satisfied the first named visa applicant was under 18 at the ‘time of application’. Having considered the evidence and arguments, because of the lack of historical records, and given the issuance of a birth certificate in Ethiopia can be issued based on self-reporting alone (which, in this matter, occurred after the Minister’s delegate sought the additional evidence), the Tribunal has not been satisfied that the first named visa applicant was under the age of 18 at the time of application. Accordingly, r.1.14(a)(i) was not met at the time of application and does not continue to be met at the time of decision. It follows that as the first named visa applicant has not satisfied a requisite criterion for the grant of the visa, the Tribunal has not assessed her against the remaining requirements of clause 117.211.

33. For the reasons above, the first named visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the first named visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is not met, and does not continue to be met, at the time of decision.

34. There is also no evidence or claim presently before the Tribunal that the first named visa applicant meets the primary criteria for any of the alternate subclasses Class AH.

    Second named visa applicant

35. The delegate of the Minister refused to grant the second named visa applicant the visa because the delegate found she did not meet cl.117.211. Specifically, the delegate found the second named visa applicant did not meet regulation 1.14(b). The delegate found the applicant had not met regulation 1.14(b) because the delegate was not satisfied the second named visa applicant cannot be cared for by either parent because each of them is dead, permanently incapacitated or of unknown whereabouts.

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

    Under 18 – r.1.14(a)(i)

36. Regulation 1.14(a)(i) requires that the second named visa applicant has not turned 18.

37. On the application for the visa under review, the second named visa applicant declared her age at the ‘time of application’ as thirteen (13) years old.

38. In the second named visa applicant’s representative’s submission dated 26 August 2020 the second named visa applicant’s age, as it was declared by the review applicant for the purposes of her previous Partner visa application, was 01/01/02. The representative advises in the submission the second named visa applicant’s actual date of birth is 15 May 2002. A birth certificate and passport have also been provided to the Department which identify 15 May 2002 as the first named visa applicant’s date of birth. Previously the Minister’s delegate accepted the second named visa applicant was under 18 years of age, according to her refusal decision because, “”..as I have reviewed the photographs submitted I am able to be satisfied that the applicant is under 18.”

39. In respect to the Tribunal’s consideration of the second named visa applicant’s date of birth, the evidence before it is conflicting (1 January 2002 versus 15 May 2002). However, importantly, what is consistent about both claims is the claimed year of birth. This is important because even were the Tribunal not to accept the later date (15 May 2002 - because of the same concerns the Tribunal identified in relying upon the same documents the first named visa applicant relied upon – which in-turn rely solely upon self-reporting), the historical claim of 1 January 2002 satisfies the Tribunal that at the time of application the second named visa applicant was 12 years old. This alone, may satisfy the Tribunal the second named visa applicant was under the age of 18 as required under law: r.1.14(a)(i). In addition, when considered in conjunction with the photographic evidence (of the second named visa applicant), the Tribunal is satisfied that any doubt about the precise day and month of birth, is ameliorated by the fact the claimed year of birth approximates with an age that the Tribunal is satisfied is under 18 years of age at the ‘time of application’.

40. Given the above, it follows that the second named visa applicant meets regulation 1.14(a)(i).

    No spouse or de facto - r.1.14(a)(ii)

41. Regulation 1.14(a)(ii) requires that the second named visa applicant does not have a spouse or de facto partner.

42. The second named visa applicant has claimed no spouse or de facto relationship. In the absence of any adverse evidence, the Tribunal accepts at face value the second name visa applicant’s claim she has no spouse or de facto at the time of applicant, and continues to have no spouse of de facto.

43. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative - r.1.14(a)(iii)

44. Regulation 1.14(a)(iii) requires the second named visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

45. The Tribunal’s consideration of the second named visa applicant - who the Tribunal finds met regulation 1.14(a)(iii) can be found above (paragraphs 15-20 of this decision).

46. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care - r.1.14(b)

47. Regulation 1.14(b) requires that a visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

48. The second named visa applicant claims both her parents are deceased.

49. The second named visa applicant claims her father Mohamed Abdosh Laz (born 27 February 1949) died on 13 February 2012 due to sickness, and her mother Amina Jemel Mumed (born 24 November 1953) died 16 October 2012 due to illness.

50. In a submission received by the applicants representative (28 August 2020) the review applicant claims Mr Laz (the applicants father) “got sick” in 2011, adding, “he had diarrhea, etc, and as a result of this illness he died in February 2012”. In respect to the applicants mother, the review applicant had not provided detail to the Minister’s delegate, though by way of the submission to the Tribunal (dated 28 August 2020), the review applicant claims:

    “Following Mohammed’s death and due to the review applicant’s older siblings’ disappearance the Review applicant and the visa applicants’ mother Amina Jemal Mumed (Amina) got seriously sick.

    Before the review applicant went to Australia due to her mother’s illness she assigned their next door neighbor Mr Tajudin Aliye Mussa (Tajudin) to look after her mother and the visa applicants.

    She died on 16/10/2012 – after the review applicant came to live in Australia in April 2012.”

1. The reasons outlined for the cause of death, or details of the sicknesses suffered by both parents are vague and lacking in any detail or any level of specificity (particularly when recounting such traumatic and serious events, even if the details are those relayed by the applicants to the review applicant based on their experiences and observations witnessing their parents claimed ill-health and eventual passing).

2. The Tribunal has considered the absence of other corroborating evidence of the parents deaths, including the arguments contained in the submission form the second named visa applicant’s representative dated 28 August 2020, and all the oral evidence provided during the Tribunal hearing conducted 10 September 2020.

3. The parties have provided the Department (previously) with copies of two death certificates for their father and mother. Both certificates were issued on 5 September 2014, some considerable time after the parents claimed deaths (in February and October 2012).

4. The Tribunal acknowledges the review applicant’s claim they hadn’t needed the certificates prior to the second named visa applicant’s migration application, and that this is the reason the certificates were not sought earlier.

5. The Tribunal also notes the country information referred to by the Minister’s delegate in her refusal decision (a copy of which the review applicant has provided the Tribunal), that death certificates appear to rely upon the basis of self-declarations by the parties themselves.

6. The Tribunal must be satisfied the, relevantly in this case, that the second named visa applicant cannot be cared for by either parent because each of them is dead. However, because of the paucity of detail provided as to the nature and circumstances surrounding the parents claimed progressively deteriorating health, and the period surrounding their eventual deaths, the review applicant has not satisfied the Tribunal the second named visa applicant’s parent were deceased as claimed - notwithstanding the evidence in the form of the death certificates - which because they are based on self-reporting by the applicants - do not themselves satisfy the Tribunal of the claim.

7. Given the above, it follows that the second named visa applicant, does not meet regulation 1.14(b) at the time of application and time of decision.

8. 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.

9. Accordingly, cl.117.211(b) is not met, and does not continue to be met at the time of decision.

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

11. For these reasons, the criteria for the grant of a Subclass 117 visa are not met.

12. In respect to the second named visa applicant, there have been no claims advanced, and no evidence present, that the applicant may meet the other visa subclasses in Class AH.

    Other considerations

13. The Tribunal notes folios 57-69 and 33 on Departmental file OSF2014/044548 contained material and assessment undertaken by Departmental officers, including initial assessments. As none of this information is information that is not contained in the decision record, the Tribunal has found none of the information is adverse. Accordingly, none of that information is required to be put formally to the applicant. In coming to the decisions in these matters, the Tribunal has placed no adverse weight on the information found at these folios.

14. The Tribunal also notes the Departmental officers have not placed any ‘non-disclosure’ certificates on the file referred to above.

    DECISION

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

    *  *  *  *  *

    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.