Ahmed-Omar (Migration)

[2020] AATA 4494

Ahmed-Omar (Migration) [2020] AATA 4494 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Saido Bedel Ahmed-Omar
AKA Sadiq Omar

APPLICANTS:  Mr Abdirahman Ali DOB: 2/1/1969

AKA Abdullahi Bedel Ali
AKA Abdullahi Raman Bedel Ali
AKA Bedel Ali Omar

Mrs Fadoma Ahmed Mohamed DOB: 2/2/1987
Mr Bashir Abdirahman Ali         DOB: 1/1/2004
Ms Bisharo Abdirahman Ali       DOB: 1/1/2005
Ms Saido Abdirahman Ali          DOB: 1/1/2009

Mr Ishag Ali Abdulle                  DOB: 6/7/1993
AKA Ishag Abdirahman Ali

CASE NUMBER:  1723685

DIBP REFERENCE(S):  F2010/051593

MEMBER:Nicholas McGowan

DATE:10 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to refuse to grant the primary visa applicant (including the secondary applicants) Other Family (Migrant) (Class BO) Subclass 115 visas.

Statement made 10 August 2020 at 1:21pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining Relative) – Federal Circuit Court remittal – remaining relative of an Australian relative – near relative – usually resident in Australia – visa applicant has adopted son – evidence regarding the review applicant’s father – wife’s siblings not declared in visa application – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 360, 366
Migration Regulations 1994, Schedule 2, cls 115.211, 115.221; r 1.15

STATEMENT

1. This statement fulfils the Tribunal’s obligations under the Migration Act: s.368.

   Particulars

2. On 8 September 2010 the visa applicants applied for Other Family (Migrant) (Class BO) Subclass 115 visas.

3. On 8 January 2013 a delegate of the Minister for Immigration refused to grant the visas under s.65 of the Migration Act 1958 (the Act).

4. On 7 March 2016 the Tribunal (differently constituted) concluded a merits review of that decision and affirmed the Minister’s delegate’s refusal decision.

5. On 26 October 2017 the Federal Circuit Court of Australia Ordered the matter be reconsidered by this Tribunal as the Court determined this Tribunal (differently constituted) had denied the applicant procedural fairness, and that this constituted a jurisdictional error, in circumstances where the existence of a 375A certificate was not disclosed to the applicant, and at least some of the documents subject to the certificate were relevant, or potentially relevant, to the issues arising on the review.

   Background

6. Mr Abdirahman Ali, born 2 January 1969 (age as evidenced by the applicant at folio 212 of Tribunal file barcode number F5500035933918) is the primary applicant (hereafter referred to as the ‘applicant’). The name Abdullahi Bedel Ali was declared by the review applicant in her past visa application (when she came to Australia). At that time the review applicant, listed Abdullahi Bedel Ali, as her sibling.

7. At the hearing into the review (differently constituted) the review applicant told the Tribunal her brother came to South Africa and needed to hide his real name because some people had an “issue” with him, and said some people in South Africa had robbed him, entering into his shop a number of times and hurting him. The review applicant claimed this is why the applicant changed his name to their father’s name (which is ‘Bedel Ali Omar’ – according to the family tree the applicant submitted to the Tribunal and which can be found at folio 212 of the Tribunal file with barcode F5500035933918). The review applicant also added that the applicant’s real name is Abdullahi Raman Bedel Ali.

8. The applicant is a Somali national who is resident in South Africa. In the visa application the applicant listed his parents as deceased and declared two siblings, namely Saido Bedel Ali (his sponsor in Australia), and his deceased sister, Fadumo Bedel Ali: as evidenced in the applicant’s completed visa application ‘Form 47OF’ at folios1-18 of the Department’s file OSF2010/051593.

9. Included in the visa applications are the applicant’s spouse (Mrs Fadoma Ahmed Mohamed), their claimed biological children, and their four children (the child, Ishaq, is the claimed son of the applicant’s deceased sister, Ms Fadumo Bedel Ali). In other words, the applicant’s nephew. The applicant has made the verbal claim he has adopted this nephew.

10. The sponsor for the visa applications, Saido Bedel Ahmed-Omar, born 1 January 1963 (age as evidenced by the applicant at folio 212 of Tribunal file barcode number F5500035933918) is the elder sister of Mr Ali. Mrs Ahmed-Omar became an Australian citizen on 21 August 2000 and has provided a copy of her Certificate of Australian Citizenship and Australian passport to the Department of Immigration. Both Mrs Ahmed-Omar and Mr Ali claim to share the same biological parents (Bedel Ali Omar born 3/2/1935 and Marian Ali born 10/12/1937 (as claimed by the applicant at folio 212 of Tribunal file barcode number F5500035933918).

11. Mr Ali’s spouse is a Somali national, and resident in South Africa. In the applicant’s visa application form (folio 9 of case file OSF2010/051593) he has declared his spouse has no siblings and declared both her parents are deceased.

    Consideration of claims, evidence and findings

12. The Tribunal (newly constituted) invited the review applicant (and visa applicants) to a public hearing in Melbourne on 23 September 2019 to provide arguments and evidence in consideration of their review. 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 a favourable decision on that information alone.

13. 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.

14. In this matter, the applicant claims to be a remaining relative of the review applicant (his claimed sister) who the applicant claims is his (and the children’s) remaining relative.

15. Relevantly, the review applicant claims to be the applicant’s sister (and an Australian citizen) and therefore an Australian-relative for the purposes of the visa applications.

16. To be granted the visas the applicant must be a ‘remaining relative’ of an ‘Australian relative’ at the time of application, and continue to be so at the time of decision: clauses 115.211 and 115.221 respectively. ‘Remaining relative’ is defined in regulation 1.15 of the Regulations.

17. An applicant is the ‘remaining relative’ of an Australian relative if that person is a parent, sister, brother, step-parent (for applicants made prior to 1 July 2009), step-brother/sister of the applicant and is ‘usually resident’ in Australia.

18. In other words, relevantly, the applicant (and his spouse) must have no ‘near-relatives’ (other than certain relatives in Australia). Additional considerations apply in respect to the claimed adopted child (Ishag Ali Abdulle).

19. As part of the Tribunal’s review (differently constituted) DNA evidence was provided from Genomic Diagnostics. This evidence was provided by the review applicant/applicant to establish in fact, their claim of being related as full biological siblings. The DNA evidence calculated the likelihood of the applicant and review applicant being related as full siblings to be 1,302,245 to 1 which indicates that the probability of a biological relationship between them is, according to Genomic Diagnostics, “extremely strong”. The Tribunal notes the Minister’s delegate did not have the benefit of having this scientific evidence when he made his refusal decision on 8 January 2013.

20. Given the evidence above, it follows that the Tribunal is satisfied the applicant is the brother of the review applicant (his sister). Accordingly, the requirements under regulation 1.15(1)(a) are met for the purposes of clauses 115.211 and 115.221.

21. Further to the additional requirements under Regulation 1.15(1)(b)-(d):, the Tribunal has considered whether the review applicant is ‘usually resident’ in Australia: 1.15(1)(b).

22. As the evidence before the Tribunal is that the review applicant has lived in Australia since being sponsored to come to this country (and becoming an Australian Citizen on 20 September 2001 (as evidenced at folio 40 of the Department’s case file OSF2010/05193 which contains an Evidence of Australian Citizenship certificate No.02095500603). Accordingly, the Tribunal is satisfied that the requirement the sponsor be ‘usually resident’ for the purposes regulations 1.15(1)(b) is met.

23. While the Minister’s delegate made no findings in relation to regulation 1.15(1)(c), this Tribunal (differently constituted) did. 

24. Regulation 1.15(1)(c) requires the applicant have no ‘near relatives’: r.1.15(2), other than those who are usually resident in Australia and are Australian citizens, permanent residents or eligible New Zealand citizens.

25. Relevantly, the question is whether in this case the applicant has any ‘near relatives’, other than those outlined (immediately above).

26. The applicant has declared in his Subclass 115 visa applications form (Page 13 of document 47OF – Part G – Details of other family members) his parents Marian Ali and Omar Bedel Ali are deceased, as is his only other sister Fadumo Bedel Ali (other than the review applicant). The applicant’s deceased sister has also been referred to as Fatuma (spelt with a ‘t’ and not a ‘d’) in the Brief Background information provided to the Department of Immigration by the applicant accompanying his Subclass 115 visa applications (folios 41-44 of the Department of Immigration file OF2010/0515593).

27. The applicant also claims his nephew, the son of Fadumo Bedel Ali, became his adopted son after her death.

28. The applicant (on behalf of his wife - the secondary applicant, Ms Fadoma Ahmed Mohame), has declared no siblings and stated her parents are deceased (as declared in the Subclass 115 visa applications found at folio (9) of the Department of Immigration file OF2010/0515593). In that declaration the father of the applicant’s wife is listed as Ahmed Mohamed, and her mother as, Khairo. No dates of birth were provided for either Ahmed or Khairo.

29. In oral evidence to the Tribunal the applicant’s wife declared she had two siblings (Mohamed Ahmed and Malyn Ahmed Mohamed) though claims both were born with severe disabilities and later died during infancy. The applicant’s wife also, latterly claimed to the Tribunal that her younger brother had passed away when he was a boy in 2008, as he was sick, but recounted she could not remember them [her siblings], or for that matter, remember her parents.

30. In respect to the review applicant and applicant’s mother, the Department of Immigration has previously accepted Marian Ali died of natural causes on 10 July 2008. The Tribunal has considered this, and the documentary evidence provided in support of this claim, which includes various statements provided (which can be found on the Department of Immigration file OSF2010/0515593 folios 31-38). Were the Tribunal to accept the mother of the applicant and review applicant is deceased, the Tribunal must likewise be satisfied their father is also deceased (for the purposes of considering whether the applicant and his spouse meet Regulation 1.15(1)(c)).

31. There has been some confusion in the delegate and previous Tribunal decision (differently constituted) with respect to a document (located at folio 39 of the Department of Immigration file OSF2010/0515593) in the name of Faduma Bedel Ali Omar which had been provided and indicated it is a death notification issued by the Garowe Hospital Director (Somalia) and refers to a “female” who passed away on 18 November 2009. The name Faduma Bedel Ali Omar corresponds approximately with the name of the applicant’s sister (who is claimed to be deceased), albeit her name is now spelt with Faduma (with an ‘a’ at the end) whereas the original 115 visa application referred to above, the name is spelt as Fadumo, with an ‘o’ at the end. The last name ‘Omar’ has also been added in the ‘notification’ and was not declared in the original application for the 115 visa applications (as stated above).The claim by the review applicant is clearly that the death notification related to the death of her [and the applicant’s] sister and told the Tribunal in response to information put  (differently constituted) “nothing was provided in regard to [her] father”. The Tribunal agrees. No documentary evidence has been provided by either the applicant or review applicant in respect to the death of their father, outside their oral claims and declaration in the original 115 Subclass visa applications. The applicant and review applicant have provided the Tribunal with oral evidence in regard to the death of the review applicant’s father.

32. While the Tribunal recognises there can be difficulty in obtaining documentation, including death notices, in this case there is no evidence which corroborates the applicant and review applicant’s claims their father is deceased. A witness who gave evidence before the Tribunal on 10 August 202, Mr Sadiq Ali, claims to have known the review applicant since 1977, and claims he knew she had lost her sister and mother. That same witness told the Tribunal he did not know the applicant’s wife, or her family, and had not met them.

33. During the Tribunal resumed hearing of 10 August 2020, held via telephone under section 366(1) of the Act, the applicant and review applicant were provided with an opportunity to provide any further evidence in respect to the details surrounding, or evidence supporting their claims their parents were deceased, or evidence in respect to the applicant’s wife, her family, in particular her siblings and parents. The applicant declined to provide any further oral evidence. The review applicant told the Tribunal she came to know after leaving Somalia that her brother’s wife had siblings, and that they and her parents were deceased. The review applicant was asked why her brother’s wife’s siblings were not declared on the application form for the visa, and the review applicant told the Tribunal she did not know she had siblings at that time.

    Other considerations

34. The Tribunal discussed with the review applicant’s representative the various certificates on the Department of Immigration file, and advised only one certificate, a Section 376 certificate was valid. The Tribunal advised the representative it was not placing any adverse weight on any of the documents/information. Nonetheless, the applicant’s representative was invited to comment on any aspect of the certificate, including validity, but declined. To the extent to which the information spoke favourably to the applicant and review applicant’s claims, specifically their kinship, it was given some weigh.

35. The totality of the evidence in respect to whether the applicant’s father is deceased, is scant. It relies on the applicant and review applicant’s oral evidence. Even were the Tribunal to accept their oral evidence, the Tribunal must still consider whether the applicant has satisfied the Tribunal his wife has no ‘near relatives’, specifically her siblings and both parents. Given the failure to declare any siblings on the original visa application and given the conflicting recall of when the siblings died (whether at infancy or later) the applicant has not satisfied the Tribunal that they are deceased. Further, and even were the Tribunal to accept the siblings are deceased, then the question of whether the applicant’s parents are deceased relies on oral evidence alone - and, in the absence of any specificity in regards to the parents particulars - including their dates of birth, dates of death, places of birth or places of death, or any other information whatsoever. In these circumstances, based on the evidence available to the Tribunal, the applicant has not satisfied the Tribunal his wife’s parents are deceased.

    FINDINGS

36. For the above reasons, the Tribunal review applicant has not satisfied the Tribunal that there are no ‘near relatives’ other than those permitted by the regulation. It follows that the review applicant has not met regulation 1.15(1)(c).

37. Given the above finding, the Tribunal need not proceed to consider the application further as an essential criterion for the grant of the visa has not been met.

38. For all the reasons given, the applicant does not meet the criteria for the grant of the 115 Subclass visa.

39. In respect of the other visa subclass there is no material, or claim, which would permit a finding that the applicant meets the prescribed criteria for the grant of any alternate.

40. As the applicant does not meet an essential criterion for the grant of the visa the secondary applicants also do not meet the requirements for the grant of any visas, accordingly, the decision in respect to their applications is likewise affirmed.

41. The Tribunal affirms the decision to refuse to grant the primary visa applicant (including the secondary applicants) Other Family (Migrant) (Class BO) Subclass 115 visas.

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