Ahmed (Migration)

[2020] AATA 2261

Ahmed (Migration) [2020] AATA 2261 (4 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mrs Zebiba Awel Ahmed

VISA APPLICANTS:  Mr Sufiyan Ahmed

Miss Fetra Ahmed
Mr Sudeys Ahmed

CASE NUMBER:  1702217

DIBP REFERENCE(S):  OSF2015 / 075335, 075334 AND 075336

MEMBER:  Nicholas McGowan

DATE:  4 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision not to grant the

visa applicants Child (Class AH) Orphan Relative Subclass 117 visas.

Statement made on 04 May 2020 at 11:31am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative – no parental care – father whereabouts ‘unknown’ – evidence of genuine enquiry to locate father’s whereabouts – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 368
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cl 117.211

WRITTEN STATEMENT OF REASONS

1. This is a merits review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Child (Migrant) (Class AH) Subclass 117 visas under s.65 of the Migration Act 1958 (the Act).

2. This statement fulfils this tribunal’s obligations under the Migration Act: s.368. While this statement sets out the tribunals’ decision (above) - the reasons for it - and findings on material matters (including the evidentiary basis), to fully appreciate this decision a third-party would need to appraise themselves with the documentary evidence in the Department of Immigration (‘department’) and tribunal case files.

3. As required by section 368(3)(b), this tribunal will provide to the Secretary with a copy of any evidence on which material findings of facts were based.

   Background

4. On 30 June 2015 the applicants applied for Child (Migrant) (Class AH) Subclass 117 visas. The applicants are Ethiopian citizens.

5. The sponsor (‘review applicant’) is Ms Zebiba Awel Ahmed who is an Australian citizen of Ethiopian descent.

6. The sponsor claims to be the applicants’ sibling.

7. The visa applicants have declared their father’s whereabouts ‘unknown’ in their visa applications and their mother (Hajo Jowar Buna) deceased.

8. On 9 December 2016 a delegate of the Minister for Immigration refused to grant the visas. On 9 February 2017 the review applicant appealed the refusal decisions to this tribunal. On 7 August 2019 this tribunal conducted a public hearing into the reviews in Melbourne.

9. The review applicant attended the hearing and provided oral evidence, as did her husband who accompanied her. The review applicant has no migration agent or lawyer. This tribunal provided an interpreter to assist the review applicant in providing her evidence. At the conclusion of the public hearing the tribunal gave the review applicant until the close of business on 22 August 2019 to seek any legal advice and/or provide any other evidence whatsoever. It also made clear that a request for additional time could be made at the end of that period, but would need to outline the reasons the time was needed and the evidence they sought to provide as a result of any extension. This tribunal took this action because, in the absence of a representative acting for the review applicant, and in order for this tribunal to be as fair as possible without assisting her, it reminded the review applicant that the onus in migration matters rests with the applicant/s (and in this case herself, as review applicant) to satisfy the decision maker (this tribunal in this instance) that the criterion for the grant of the visas is satisfied. This tribunal made it plainly known that it was unable to provide her migration advice, but that she was free to avail herself of such.

   Consideration of evidence and findings

10. The Minister’s delegate found the applicants had not satisfied regulation 1.14(b).

11. Specifically, and relevantly in this case, the delegate was not satisfied the applicants met the requirement within 1.14(b) that their father’s whereabouts is unknown.

    Case Number 1702217  Page 2 of 5

1. During this tribunal’s public hearing, it examined the concern (previously raised by the delegate – as contained in a copy of the decision record provided to this tribunal by the review applicant) that although the review applicant has claimed her father disappeared in 2007, her brother Saifudin Awel Ahmed (in a separate matter sponsored by the review applicant: file number F2009/-97791) stated during an interview with the Immigration Department on 17 August 2011, that her father was imprisoned three years ago, meaning, in 2008. Saifudin added during that interview (at that time) that she had had no contact with her father since that time (2008). The review applicant told this tribunal (and stated in her pre-hearing submission) that any confusion had arisen because of the difficulty when reconciling the Australia and Ethiopia calendars. While this tribunal accepts this is a possibility, as the evidence was submitted by the then applicant (the review applicant’s own sister) and the review applicant herself, there is no indication that any translation or confusion was encountered when either party gave their evidence, except when the inconsistency arose of a consideration in this case. In any case, even were this tribunal to give the review applicant the benefit of any doubt, then what this tribunal is being asked to accept that since 2007 the whereabouts of the applicants’ father has been unknown by the review applicant, the applicants’ and their brother Saifudin. Even accepting all of this at face value, this tribunal has not been satisfied that it logically amounts to a finding that their father’s whereabouts is unknown. It has come to this finding because this tribunal has not been satisfied the criteria is met based on an unsubstantiated claim for which there is no persuasive evidentiary base to corroborate that claim, or at the very least, contemporaneous or historic evidence that enquiry has/had been made to ascertain her father’s whereabouts.

2. This tribunal has also had regard to a concern also raised in the refusal decision that (in the evidence provided by applicants themselves) a person bearing the exact-same name of their father took their mother to a hospital and subsequently signed the death certificate for their mother in Ethiopia in December 2013. The delegate contends that that person was the applicants’ father (as the name is identical), and because he would logically be the person to sign the mother’s (his wife’s) death certificate. The review applicant has claimed (during this tribunal’s hearing and in her pre-hearing submission), and has provided a court finding which accepts the evidence of a number of people that attest to a person (of the same name as the review applicant and applicants’ father) as being the person who took their mother to hospital in 2013 and later signed their mother’s death certificate - but not being her husband - as is found by the Minister’s delegate. This tribunal accepts the review applicant’s evidence at face value, even though it clearly relies upon the self-reporting of people known to the review applicant and applicants. There is no evidence presently before this tribunal that the court document is somehow bogus or fake. That said, this tribunal does not find this evidence is somehow indicative of either the review applicant or applicants not knowing their father’s whereabouts. Alone, it may satisfy this Tribunal that her father was not the person to attend the hospital with her mother in 2013, but it does not follow that this is evidence their father’s whereabouts were unknown to the review applicant and applicants at that time.

3. During the public hearing the review applicant told this tribunal she had tried to enquire about her father and was somewhat restricted because of the government which she felt was authoritarian and acted in ways that threatened her family’s wellbeing. The review applicant’s husband gave oral evidence that they had used word-of-mouth to seek to locate her father, including across towns and other provinces, but that they had not heard of him and continued to presume he was missing, perhaps even dead, if not in prison. The review applicant’s husband claims the family had thought the review applicant’s father might have been released from prison in recent ‘releases’ by the authorities, but that he wasn’t (should he continue to be detained). While this tribunal is prepared to give the applicant’s the benefit of any doubt, it ultimately requires actual evidence the review applicant and applicant have genuinely sought to find his whereabouts.

Case Number 1702217  Page 3 of 5

1. The oral evidence received during the public hearing, and the details provided by the applicants (including the review applicant in her pre-hearing submission to this tribunal dated 31 July 2019) are generalised in nature and do not point to specific acts and results (even if unsuccessful) which have been, or even continue to be, undertaken to genuinely locate their father and determine his whereabouts.

2. On 21 August 2019 the review applicant emailed this tribunal. The review applicant explained that since this tribunal’s hearing she had “tried” to contact the Red Cross through relatives in Addis Ababa, “approached” the Australian Red Cross here in Australia and sent an email to the UNHCR in Sudan and Kenya.

3. The review applicant has provided this tribunal with a copy of the email she sent to UNHCR (Sudan) dated 21 August 2019. . In that correspondence the review applicant asks the UNHCR for “...information about my missing father Awel Ahmed Adbi who has been missing since 2007.” No response or further evidence (including, for example, a copy of any communication with UNHCR Kenya, or a response from UNHCR Sudan) has been provided to this tribunal at the time of this decision (some eight months later).

4. The review applicant attached to her email (to this tribunal of 21 August 2019) a copy of a letter dated 21 August 2019 from Ivana De Masi, Field Officer, Restoring Family Links program at the Australian Red Cross. In that letter the Officer confirmed the review applicant’s request for the “Tracing” of her father, which the Australian Red Cross advised had been sent to the International Committee of the Red Cross Addis Ababa, Ethiopia. The Officer further advised the review applicant that she would be notified once the Red Cross in Ethiopia acknowledge receipt of her request and accept the case, noting the following:

   Unfortunately, it is difficult to advise how long it will take to obtain a case outcome as this depends on the individual circumstances of the case and the current resources and capacity of the International Committee of the Red Cross Addis Ababa.

   Please note that negative outcomes of any Red Cross tracing enquiries can never be considered as conclusive as the Red Cross network is only one way in which a person may be traced, and varies in all contexts.

5. No further evidence has been submitted by the review applicant in regards to her request of the Australian Red Cross.

6. While the above actions of the review applicant demonstrate an effort to obtain information on the whereabouts of her father, as there has been no evidence of any follow-up, or further evidence of any engagement to (at the very least) receive a response to her request for assistance to locate her father, this tribunal has not been satisfied (that on the basis of these and the other enquiries outlined during the public hearing - including the documentation provided prior) that his whereabouts is unknown.

7. It has now been eight (8) months since the review applicant provided the additional evidence detailed above. The review applicant was granted the opportunity to seek legal or migration advice in respect to her review and claims, and provided with ample time to do so (in this tribunal’s view). This tribunal has also given significant time post-hearing to allow the review applicant to submit any additional evidence which supports her claims. Mindful of the time such a request might take, this tribunal did not seek to conclude this matter precipitously, rather waiting for a significant period of time to pass before proceeding to make a decision. The review applicant has not sought additional time to provide any further evidence.

Case Number 1702217  Page 4 of 5

1. Had the review applicant requested more time to allow her to make further enquiries or seek a full (or even partial) response from the organisations she’d already reached out to, this tribunal would have had no hesitation in granting it.

2. In circumstances outlined above, the review applicant has not satisfied this tribunal that the whereabouts of her father (and that of the visa applicants) is unknown.

3. The visa applicants are required to satisfy the criterion under law at clause 117.211 of the Act. Relevantly, this requires an assessment of whether Regulation 1.14 (which establishes a definition of ‘Orphan Relative’) has been met. In this case, the review applicant has been unable to fulfil a central requirement of that Regulation, to the extent that she has not satisfied this tribunal that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Specifically, the whereabouts of the visa applicants’ father, on the strength of the evidence presently before this tribunal as provided by the review applicant, is not ‘unknown’.

4. Given the above, the review applicant has not satisfied this tribunal that the visa applicants meet regulation 1.14. In turn, the visa applicants do not meet the requirements of clause 117.211 in that they are have not established they are “...an orphan relative of an Australian relative of the applicant...”, or the alternative under law.

5. It follows, that the visa applicants have not meet one of the clauses in Schedule 2 of the regulations which is necessary for the grant of the Subclass 117 visas.

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