Ahmed (Migration)

Ahmed (Migration) [2018] AATA 2015 (21 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Safia Musse Ahmed
VISA APPLICANTS:  Ms Ladan Mohamed Abdullahi
Ms Maryan Mohamed Abdullahi
CASE NUMBER:  1603600
DIBP REFERENCE(S):  OSF2013/100506
MEMBER:Hugh Sanderson
DATE:21 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that both the first named and second named 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 21 May 2018 at 8:08am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Relative of review applicant – Death of parents – Disappearance of visa applicant’s mother – Hospital letter – DNA testing results – Current care and support by grandmother – Decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2 cls 117.211, 117.221
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 Immigration on 3 March 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 27 March 2013. 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants met the definition of an orphan relative in r.1.14 of the Regulations.
Background
The review applicant was born in Somalia. She was granted a subclass 100 Partner visa in 1995 and first entered Australia that year. In her Partner visa application she disclosed that one of her nine siblings was her sister, Rahma. She is now an Australian citizen.
The visa applicants claim to be the children of Rahma and therefore the nieces of the review applicant. They were born in Somalia and claim to be currently 21 and 17 years old. They made separate applications for the visas.
The review applicant provided a statement where the following was claimed:
·The visa applicants are the children of her sister, Rahma, and Mohamed Abdullahi;
·Prior to the birth of Maryan, their father attempted to travel by boat to Yemen;
·The father did not return from this boat trip and following a search on the news the family was told that the boat did not reach Yemen safely;
·The mother decided it was best to try to leave Somalia and, leaving the children with her mother, travelled through Libya with a plan to reach Europe but never returned and the family has lost all contact with her; and
·When the visa applicants’ mother disappeared, the review applicant started sending money to them to support them.
The review applicant provided a letter from Borama General Hospital dated 1 January 2013 which stated as follows:
This is to confirm you that the Father named Mohamed Abdullahi Abdule was died on 2007 due to illegal migration in south Sudan and that he travelling from Somalia to Libya. And also his wife was lost at that time while she was crossed the ponders between the Sudan and Ethiopia.
On the other hand, as we are aware since the illegal human trafficking started directly affected and increased the death of parents.
Therefore, we are confirmed you again that this father was died and we recommend respect this letter.
The Department requested the review applicant provide further documents in support of the application. The applicant’s agent responded confirming that the visa applicants are full siblings and that they do not have any other siblings. Requests for school reports were not able to be obtained and there were no hospital records kept which could be provided to the Department.
The delegate who considered the application noted the following issues:
·Based on the information provided by the visa applicants, it appeared that at the time of the application they were both under the age of 18;
·In the Partner visa application of the review applicant, her sister, Rahma, is listed, however, there is no other information which would indicate the visa applicants are related to the review applicant;
·DNA testing had not been carried out (or requested by the Department) at the time of the decision;
·Statements made as to how the visa applicant’s parents disappeared were inconsistent, in particular the statement provided by the review applicant and the letter provided from Borama General Hospital with one stating that the visa applicant’s father died en route to Libya in South Sudan and the other claiming that he died in a boat en route to Yemen;
·It is highly irregular for a hospital to provide a written statement regarding the death of people when it did not occur in the hospital or within their region; and
·There was no plausible information to confirm the claim that the visa applicants’ parents were missing or deceased.
Taking these matters into account, the delegate was not satisfied that the visa applicants were relatives of the review applicant or that they could not be cared for because their parents were dead or of unknown whereabouts. Accordingly, the delegate was not satisfied that the visa applicants met the definition of orphan relatives in r.1.14 and therefore did not meet the criteria for the grant of the visa in cl.117.211 and cl.117.221 and refused the application. The Department issued only one decision finding that both visa applicants did not meet the criteria for the grant of the visa.
Information to the Tribunal
The review applicant provided a statement to the Tribunal where she made the following claims:
·She lost contact with her sister in 1991 and did not re-establish contact with her again until after she entered Australia;
·At the time she re-established contact with her sister, her husband was already missing;
·Her sister had three children, the two girls who are the visa applicants and a son who was taken into the care of his father’s family and with whom they have no contact;
·When the review applicant first contacted her sister, her husband had been missing for about 12 to 18 months after attempting to travel to Yemen seeking a better life and she had not heard from him over that time and was not sure if he was alive or dead;
·The review applicant’s sister received reports that the boat on which her husband travelled sank on the way to Yemen and no one survived;
·When the review applicant’s sister went missing in 2011 the review applicant had no idea that she was planning to travel anywhere and her mother believed that she was just travelling to find work elsewhere in Somalia;
·The review applicant’s mother then heard that the review applicant’s sister had travelled with people smugglers and they have not heard of her since then and do not know her whereabouts or if she is still alive;
·After reviewing the documents provided previously, the review applicant has identified mistakes due to the fact that she does not read or write English well and was relying upon an interpreter;
·Her sister was living in Borama with the visa applicants and her mother, but had to travel to Hargeisa to find work; and
·The doctor from the hospital who provided the death certificate was trying to help, but nobody knows what happened to the visa applicants’ parents and he only repeated what a friend of the family had told him which was why he was mistaken.
The review applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from a number of friends of the review applicant in Australia. Attempts to contact the visa applicants by telephone were not successful. 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 by her registered migration agent who attended the hearing.
The review applicant said that as the Department had asked her to provide evidence of the death of the visa applicants’ parents she had contacted people in Somalia to get such documentation. She did not know who communicated with the doctor at Borama General Hospital or what they had told him. She did not know why the information contained in the letter from Borama General Hospital was different to what is now claimed.
The review applicant said that in 1991, due to the civil war, the family splintered and went different ways. She did not re-establish contact again with her sister (the mother of the visa applicants) until 2002. At that time she was aware that the visa applicants’ father was missing and presumed dead.
The review applicant said that in order to support her family her sister would travel from Borama to Hargesia to find work. She said that she had concerns about her sister as she felt that she was ‘sick in the mind’ due to her distress at losing her husband and the circumstances that she was in. She said that the reality was that nobody really knew what had happened to her. She said that travel between Borama and Hargesia was dangerous with many illegal checkpoints where people are robbed or killed. She said that as far as she was aware on one of her trips to Hargesia her sister disappeared. She said that her mother had tried to get any information about her, but could find nothing. She said that her mother hoped the daughter had gone to get a better life which was why she believed she may have contacted people smugglers to travel to Europe. She said despite efforts to try to find her they had heard nothing more from or about her.
The review applicant said the visa applicants were currently living with the review applicant’s mother. She said that they cared for her mother but if they are able to come to Australia, her mother will be looked after by her siblings and their children.
A number of friends of the review applicant gave evidence in support of the application. They provided consistent information to that of the review applicant, however, the information was only based on what the review applicant had told them. One witness, Fartun Farah, stated that she had returned to Somalia in 2017 and had seen the visa applicants being cared for by their grandmother. She said that if their parents were alive, they would be caring for them.
Post-hearing information
The review applicant provided further statements in support of the application. It was agreed that the review applicant and the visa applicants undergo DNA testing to help establish their relationship. The testing was conducted by Genomic Diagnostics.
The report, dated 14 May 2018, found that the statistical likelihood of the review applicant and Ladan Abdullahi being related as biological aunt and niece compared to unrelated individuals was calculated to be 192 to 1. It was concluded that there is strong support that they are related as claimed. The report found that the statistical likelihood of the review applicant and Maryan Abdullahi being related as biological aunt and niece compared to unrelated individuals was calculated to be 2,039 to 1. It was concluded that there is very strong support that they are related as claimed.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicants meet the definition of an orphan relative.
Is the visa applicant an orphan relative of an Australian relative?
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.
‘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 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): r.1.03. In the present case the review applicant is the relevant Australian relative who claims to be their maternal aunt.
For the reasons below, the Tribunal finds the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision, for both visa applicants.
Age – r.1.14(a)(i)
Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.
The first named visa applicant claims to have been 16 years old at the time the application was filed. The second named visa applicant was 12 years old at the time the application was filed. Evidence has been provided in support of their date of birth, including their passports and other material provided to the Department. In its decision, the Department was satisfied that both visa applicants were under the age of 18 at the time of the application.
Accordingly r.1.14(a)(i) was met at the time of application. At the time of this decision, the first named visa applicant is 21 years old and the second named visa applicant is 17 years old.
Spouse or de facto partner – r.1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.
There is no information before the Tribunal which would indicate that either visa applicants currently have or have ever had a spouse or de facto partner. 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)
Regulation 1.14(a)(iii) requires the 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.
The review applicant, who is an Australian citizen, claims to be the maternal aunt of the visa applicants. When the review applicant applied for her Partner visa, she disclosed as her sibling the mother of the visa applicants. DNA testing has now been carried out to establish the relationship between the review applicant and the visa applicants. This testing concluded that there was strong support for the first named visa applicant and very strong support for the second named visa applicant being related to the review applicant as niece and aunt.
The Tribunal places significant weight on the results of the DNA testing. The fact the DNA testing provides strong support for the proposition that the visa applicants are related to the review applicant as nieces and aunt together with the other information provided as to their claimed family relationship leads the Tribunal to conclude that the review applicant is related to the visa applicants as defined in r.1.03.
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)
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.
The claim that has been made as to the circumstances of the visa applicants’ father is that in about 2007 he was attempting to travel to Yemen by boat and was then not heard of again. It is believed he has died. No contact has been able to be established with the visa applicants’ father and it was reported that the boat he was on sunk and that everybody on board drowned.
The claim that the visa applicants’ father died in this manner is plausible. At the time of his claimed disappearance, Somalia was in the midst of civil unrest with many of the population seeking to escape the country by boat by travelling to Yemen. The claims are supported by the statements made by the review applicant and the fact that she was aware that the visa applicants’ father was not present when she returned to Somalia in 2002.
The claim that has been made as to the circumstances of the visa applicants’ mother is that in 2011 she was travelling between her home with her children in Borama and Hargeisa where she had obtained work and simply disappeared. It was believed that she was likely to have been killed by bandits or other people.
The claims made as to the disappearance of the visa applicants’ mother is plausible. In 2011 there was continuing civil unrest in Somalia and attempts to locate the visa applicants’ mother since then have been unsuccessful.
The main difficulty in coming to any conclusion as to whether the parents of the visa applicants have died or are of unknown whereabouts is the inconsistent information that has been provided as to the circumstances of the disappearance.
The most obvious inconsistent information is that provided in the document purportedly from the Borama General Hospital which states that the visa applicants’ father disappeared while travelling from Somalia to Libya and their mother disappeared when travelling from Sudan to Ethiopia. Claims have also been made that the visa applicants’ mother disappeared when she had arranged to leave Somalia with people smugglers.
The Tribunal places no weight on the letter from Borama General Hospital. If this letter is genuine, it provides no first-hand information as to the circumstances of the visa applicants’ parents. The review applicant explained that the only reason this letter was provided was the Department had requested documentation to confirm the deaths of the visa applicants’ parents. It was claimed the letter was obtained by friends of the visa applicants’ grandmother approaching a doctor at the hospital. It is questionable why the visa applicants and the review applicant provided this letter to the Department if the information in it appeared to them to be wrong. The fact that this letter was provided and the information is not consistent with the claims made by the review applicant as to the circumstances of the disappearance of the visa applicants’ parents does not, however, lead the Tribunal to conclude that the claims made as to the circumstances of the disappearance of the visa applicants’ parents are not genuine.
The visa applicants’ mother has now been missing for seven years. The Tribunal accepts that the visa applicants and their family have made enquiries as to her whereabouts without success. If their mother had been able to leave Somalia it is likely that she would have been able to contact them and provided details of where she was. The only information before the Tribunal is that since 2011 the visa applicants have been solely cared for by their grandmother who is elderly and frail. The only financial support they have received is from the review applicant.
The Tribunal has considered all the circumstances of the visa applicants and their parents. The Tribunal finds that their father disappeared after attempting to travel to Yemen by boat in 2007 and, despite attempts to try to locate him or find out what happened to him, that his whereabouts are unknown. It is likely he died by drowning during the attempt to travel by boat to Yemen.

The Tribunal finds that the visa applicants’ mother disappeared in 2011 while travelling to Hargeisa from Borama. Despite attempts to locate her and find out what has happened to her, there is no information which would indicate that she is alive or able to care for the visa applicants. The Tribunal finds that the visa applicants’ mother’s whereabouts are unknown and that she is likely to have died.
The Tribunal finds that the visa applicants cannot be cared for by either parent because both parents are of unknown whereabouts and are likely to be dead.
Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.
Best interests – r.1.14(c)
Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicants.
The visa applicants are currently being cared for by their grandmother who is elderly and frail. The visa applicants’ grandmother is unlikely to be able to provide adequate care or support to the visa applicants and that she will herself require support and care from her siblings and their children.
There is no reason to believe that it would not be in the best interests of the visa applicants to be granted the visa. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.
Conclusion
Given the findings above, cl.117.211 is met.
The Tribunal finds that the first named visa applicant does not continue to satisfy the criterion in cl.117.211, but only because the first named visa applicant has turned 18. It follows that cl.117.221 is met by her. The second named visa applicant is about to turn 18 years old and she otherwise continues to satisfy the criterion in cl.117.211. It follows that cl.117.221 is also met by her.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that both the first and second named 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.
Hugh Sanderson
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.

[2018] AATA 2015

21 May 2018

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Immigration

Statutory Interpretation

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Judicial Review

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