Abdullah Alinur (Migration)

[2021] AATA 5407

Abdullah Alinur (Migration) [2021] AATA 5407 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hindiyo Abdullah Alinur

VISA APPLICANT:  Miss Naimo Abdullahi Alinur

CASE NUMBER:  1823176

HOME AFFAIRS REFERENCE(S):          OSF2015075188

MEMBER:M. Edgoose

DATE:3 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 03 December 2021 at 11:45am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – visa applicant is living with neighbour’s family – no evidence that the visa applicant has been adopted by the review applicant – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.111, 117.211,117.221

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

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 Home Affairs on 4 June 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 4 June 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 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211.

4. The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

5. The review applicant appeared before the Tribunal on 5 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Naimo Abdullahi Alinur the visa applicant, Mr Abdurahman Adem a family friend and neighbour and Mr Abdurished Aliye a friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

6. On 5 November 2021 the Tribunal Member adjourned the hearing as during his introduction the Member was no satisfied with the quality of the assigned interpreter. The review applicant and representative were informed that the matter would be rescheduled for another time. The hearing recommenced on 3 December 2021 at 10am.

7. The review applicant was represented in relation to the review by their representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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.

10. ‘Orphan relative’ is defined in reg 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): reg 1.03.  In the present case, Mrs Hindiyo Abdullah Alinur, is the relevant Australian relative.

11. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the 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.

    No parental care – reg 1.14(b)

12. 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. 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.

13. The delegates decision mention that following DNA testing it was found that the review applicant and visa applicant are related as biological full siblings rather than half biological siblings. The delegate noted that statements from the review applicant and visa applicant were not consistent with the DNA test outcomes. At time of application the review applicant stated “That I know that the applicant’s father is on routine blood pressure tablet…” whereas the claims in the visa application and parts of the review applicant’s submission stated that the visa applicant’s father is deceased. At hearing the review applicant said to the Tribunal that in the end of 2014 my father was not feeling well, and that review applicant had to look after the little one, meaning the visa applicant. After a short period of time the review applicant stated to the Tribunal that her father passed away in 2015. The applicant informed the Tribunal that a death certificate had provided been provided to the Tribunal.    

14. The Tribunal has given regard to the letter submitted to the Tribunal dated 11 October 2021 by the review applicant’s representative. The letter claimed the visa applicant continues to live in Ethiopia with family friends, that the visa applicant continues to attend school and that she is single, not married and not in a de facto relationship. The letter further states that as the representative of the review applicant we have been instructed to confirm that the parents are deceased, that the applicants did not know they were full siblings until the DNA results were notified to the Department and that as the representative, we have requested further evidence of the mothers deceased status. The review applicant confirmed at hearing that this was the instructions she had provided her representative.

15. On 29 October 2021 a further submission was received from the review applicant’s representative. The submission included a response to the hearing invitation, an outline of the type of evidence the review applicant, visa applicant and witnesses would provide to the Tribunal at hearing. An outline of the evidence to be provided to the Tribunal at hearing was outlined for the review and visa applicants and Abdurahman Adem and Abdurished Aliye.

16. The representative’s submission stated that the review applicant would say to the Tribunal that her biological mother passed away in 2011 and that she died after contracting Cholera as a result of dehydration. The submission states that the mother did not receive any medical attention and that she passed away in a remote location which had no civil registration system. Within the submission they review applicant claims to have submitted a death certificate that was recently obtained. The submission states that the certificate is not clearly legible and is not translated into English. The review applicant confirmed this at hearing. Given that this submission is not legible and has not been translated into English the Tribunal gives it no weight. At hearing the representative requested further time to submit a clearer version of the claimed death certificate. The Tribunal refused this request. Given that a death certificate has only recently been obtained and that the claim mother passed away in 2011, 10 years ago, the Tribunal has genuine concerns about the validity of such a death certificate.

17. The Tribunal considered overall the outline of evidence that was to be provided at hearing. Given that it was not in the words of the applicants or the witnesses or in the form of Statutory Declarations but that of the representative the Tribunal gave the submission little weight.  The Tribunal considered the oral evidence provided at hearing to be of more credible.

18. At hearing the review applicant told the Tribunal that her mother was taking care of the visa applicant. The review applicant thought that the visa applicant had been adopted by her mother, but no formal adoption actually took place, but only in a custom way. This information had not been provided to the Tribunal or Department previously and was only mentioned for the first time at hearing. The Tribunal found the oral evidence of the review applicant to be inconsistent and for this reason give her oral evidence little weight.

19. At hearing the visa applicant told the Tribunal that she is living all alone, is dependent on one of her neighbours and that she just wants to join her sister now, in Australia. The visa applicant informed the Tribunal that she is not married but still at school and currently in eleventh grade. The visa applicant informed the Tribunal that her mother had passed away when she was 10 years of age and that her father passed away when she was 13 or 14 years of age. The visa applicant informed the Tribunal that she had been adopted by her stepmother but had no formal documents to prove this claim. The Tribunal further notes that the visa applicant was not able to provide any further evidence regarding the claimed deaths of her biological parents. The visa applicant stated to the Tribunal that she has no support in her home country and that she just wants to join her sister in Australia. The Tribunal gives some weight to the oral evidence provided by the visa applicant.  

20. Witness Mr Abdurished Aliye informed the Tribunal that he was originally from the same village but did not really know the family. During a visit to Ethiopia in 2019 the witness told the Tribunal that the visa applicant was living with a male. This was the first time the Tribunal had been informed that the visa applicant was living with a male. It would appear that the visa applicant was living with might have been the Mr Abdurahman Adem the next witness. The Tribunal give little weight to the oral witness statement at hearing.

21. Witness Mr Abdurahman Adem stated to the Tribunal that the visa applicant is my neighbour and that I know her. Mr Adem further informed the Tribunal that the visa applicant is living with his family. The Tribunal gives little weight to the submission made by the witness.

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

    Has the applicant been adopted by the Australian relative?

23. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

24. There is no evidence before the Tribunal that the visa applicant has been adopted by the review applicant. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

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

26. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. It follows that cl 117.221 is not met.

27. 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

28. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    M. Edgoose
    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.