Ahmed (Migration)

[2018] AATA 4490

Ahmed (Migration) [2018] AATA 4490 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ruqiyo Abdullahi Ahmed

VISA APPLICANT:  Mr Ibrahim Abdullahi Farah

CASE NUMBER:  1614232

DIBP REFERENCE(S):  2015/074931 OSF2015/074931

MEMBER:Kate Millar

DATE:19 September 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 20 September 2018 at 5:25pm

CATCHWORDS
MIGRATION – Child (Migrant) Class AH) – Subclass 117 (Orphan Relative) – applicant over 18 at time of lodgement – no evidence of lodgement on an earlier date – application stamped and received in 2015 – no discretion to consider additional circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14 Schedule 2 cls117.211, 117.221

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 27 July 2016 to refuse to grant Ibrahim Farah a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. Ibrahim applied for the visa on 4 March 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). The criteria include at cl.117.211 that = the applicant to is an orphan relative of an Australian relative. This includes that the person has not turned 18 years of age. The delegate refused Ibrahim’s visa application as the delegate found Ibrahim had turned 18 years of age before the visa application was lodged.

4. Mrs Ahmed appeared before the Tribunal on 7 August 2018 and 30 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Jamal Ibrahim, Habib Diriye and the visa applicant Ibrahim Farah.  The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Ibrahim is the orphan relative of an Australian relative, which in this case is Mrs Ahmed. 

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

7. 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.

8. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons.

   Age – r.1.14(a)(i)

9. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18 at the time of the application.

10. This is particularly problematic in this case as the Department records the date of application as 4 March 2015. The visa application records Ibrahim’s date of birth as 1 January 1997. If his date of birth is correct and the date of the application is correct, Ibrahim had turned 18 at the time the visa application was lodged and does not meet r.1.14(a)(i).

11. Turning first to Ibrahim’s date of birth.  The date of birth recorded on his visa application is 1 January 1997. No identity documents were provided with the visa application.  Ibrahim’s date of birth on a Republic of Kenya Refugee Card issued 23 September 2015 is 1 January 1997. Both Mrs Ahmed and Ibrahim said that this is his date of birth, and that they were aware that this was his date of birth because his mother told them.  In the absence of any information to the contrary I accept his is his date of birth. 

12. The visa application is stamped as received by the Australian High Commission Immigration Section in Nairobi on 4 March 2015.

13. Mrs Ahmed says the application was lodged in July 2014.  She said she had sent all the documents through DHL to the children’s address and paid the application fee.  There is a receipt for the application fee on the Department file which shows it was paid 30 June 2014. 

14. Mrs Ahmed said the children took the application to the Australian High Commission in Nairobi and were told if they do not have an appointment they could not just show up, and could not enter. 

15. Ms Ahmed said the children went to the High Commission several times but were met by security.  She said the children gave the application forms to the security guard at the gate on or around 22 August 2014.  She said they were told by the security guard they would receive a call but they did not receive a call.

16. On being asked why they went there a number of times, she said this was because they were told by the security guard that they do not have an appointment and they might get a call.  They went back a number of times before the security guard took the documents from them.   

17. There is a letter from the then representative dated 19 November 2014 stating that applications had been lodged but were handed back on the basis that there was insufficient documentation.  It states a Form 80 is enclosed (personal particulars for character assessment) with the letter.

18. Ibrahim told the Tribunal that he took the application to the Australian High Commission and met with the security guard, who asked him why he was there.  Ibrahim said he told the security guard he wanted to lodge a visa application.  He was asked if he had an appointment and he said he did not and were told by the security guard that he could not go in as he did not have an appointment.  Ibrahim said the thought they would receive a call, waited for months but did not receive a call.  He said they went back to the High Commission and were told they could not enter without an appointment.  They left and again thought they would be contacted but were not.

19. Ibrahim says on the third time they approached the High Commission the security guard contacted someone inside the High Commission and told them they had come to the wrong building and they need to go to another place in the Emirates Building.  When they went to the Emirates Building they were able to lodge the application, but this was a year and some months after they first tried to lodge the application. 

20. A search of the internet shows that the Australian High Commission in Nairobi is in a different location to the visa application centre. The Australian visa application centre is located in Westlands Nairobi,[1] and the Australian High Commission in Kenya is at Riverside Drive.[2]  The website to book appointments at the Australian High Commission in Nairobi specifically states that the Consular section does not accept or process visa application.

    [1] SDP

    [2] >

    The information from Ibrahim that they had gone to the wrong building to lodge the visa application was put to Mrs Ahmed under s.359AA of the Act.  Mrs Ahmed said Ibrahim’s version of events was correct but her version was correct as well because there had been a delay and they waited for a long time to get a call.  She said they wasted many months and days since she paid the fee for the visa.  Mrs Ahmed then said the thought that the application has been taken and put aside until the date it is recorded as having been lodged.   

21. I accept that Ibrahim attended the High Commission in Nairobi and was told he could not enter, and that he believed he would be called.  This is supported by the payment of the fee for the visa.   I have carefully considered whether the application could have been lodged if it had been accepted by the security guard, however I am ultimately not satisfied this was the case, or that the application was put aside for a period of time before it was stamped. Ibrahim is the person that was present at the time, and he says he was told on his third visit to the Australian High Commission that he had gone to the wrong place. I am not satisfied that the letter from the representative establishes the visa application was lodged at an earlier date as Ibrahim is the person who was present at the time attempts were made to lodge the application.

22. I find the application was lodged on 4 March 2015. As Ibrahim was over 18 years of age at the time of the application, he does not meet r.1.14(a)(i) of the definition of orphan relative. It is not necessary to consider the remaining aspects of the definition of orphan relative, as Ibrahim must meet all of the elements to satisfy this definition. As a result he does not meet cl.117.211 of Schedule 2 of the Regulations. As he does not meet the criteria for the grant of the visa, the decision must be affirmed.

23. This is a poor outcome for Mrs Ahmed and for Ibrahim.  Mrs Ahmed said Ibrahim and his sister have no relatives in Nairobi and their parents are both deceased.  She says she constantly worries about them and what will happen to them and they call her and think she is delaying bringing them to Australia.

24. Having found that Ibrahim was over 18 years of age at the time the visa application was lodged, the Tribunal does not have any discretion to further consider the circumstances.  Mrs Ahmed may seek the intervention of the Minister if she considers the circumstances are such that a different decision should be made.

    DECISION

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

    Kate Millar
    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.