Ali (Migration)

[2022] AATA 4657

Ali (Migration) [2022] AATA 4657 (8 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdulkadir Ali Ali

VISA APPLICANTS:  Master Hamza Johar Aman
Master Mohamed Johar Aman
Miss Rahma Johar Aman

CASE NUMBER:  1836128

HOME AFFAIRS REFERENCE(S):          2016047149 OSF2016047149

MEMBER:Stephen Conwell

DATE:8 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 08 November 2022 at 2:36pm

CATCHWORDS  
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ of an Australian relative – step-uncle – marriage between sponsor’s father and applicant’s grandmother – no parental care – contradictory evidence regarding the death of applicant’s father – medical evidence regarding applicant’s mother’s mental health – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cl 117.211

CASES
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 20 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants (applicants) applied for the visas on 17 August 2016. 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. In three separate decisions made on the same date by the same delegate, each applicant was refused the grant a visa because they each did not meet cl.117.211 of Schedule 2 to the Regulations since the delegate was not satisfied that (a) that each applicant was a relative of the sponsor as defined in Regulation 1.14 and (b) that each applicant was “orphaned” sponsor as defined.

5. The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video and telephone hearing via Microsoft Teams. The parties raised no objections as to conducting the hearing in this manner.

7. The sponsor participated in the hearing by video on 20 August 2022 to give evidence and present arguments.  The Tribunal also received oral evidence from the sponsor, Mr Abdulkadir Ali Ali and from witnesses Mr Saman Kimo and Ms Shamsiya Kemal.  None of the applicants attended the hearing. The hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

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

   consideration of claims and evidence

9. The issue in the present case is whether the applicants are the orphaned relatives of the sponsor.

10. The Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record pertaining to each applicant, visa application forms and supporting documents, financial information, communication records, written statements by the sponsor, as well as  the oral testimonies given at the hearing.

    Are the visa applicants orphan relatives of an Australian relative?

11. 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.

12. ‘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, the sponsor, Mr Abdulkadir Ali Ali, is the relevant Australian relative.

13. Both Subclasses 117 and 837 require, with limited exception, that at the time of application and decision the applicant is the ‘orphan relative’ of an Australian relative as defined in r.1.14. An applicant is an orphan relative if he or she:

    ·is a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    ·has not turned 18;

    ·does not have a partner;

    ·cannot be cared for by either parent[1] because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    ·there is no compelling reason to believe that the visa grant would not be in the applicant’s best interests.

    [1] ‘Parent’ is defined in s.5(1) of the Act. See also r.1.14A(1) of the Regulations (post 1 July 2009) which specifies that a reference to ‘parent’ includes ‘step-parent’. 

14. At the time of decision the applicant must continue to satisfy the criterion in cl.117.211 (orphan relative or adopted), or not continue to satisfy that criterion only because the applicant has turned 18.

15. The Tribunal notes that in meeting the criteria all aspects of the definition must be considered and met.  If the applicant does not meet one aspect of the definition then the applicant cannot meet the criteria for r.1.14.

16. For the reasons below, the applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the applicants are not orphan relatives 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 in respect of all the applicants.

    Age – r.1.14(a)(i)

17. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.  At the time of application Hamza Johar AMAN declared that his date of birth was 27 October 1999; Rahma Johar AMAN declared her date of birth to be 12 October 2000 and Mohamed Johar AMAN declared that his date of birth was 11 September 2001.  The Department was prepared to accept that at time of application none of the applicants had turned 18.  The Tribunal has no evidence that the applicants dates of birth are otherwise than as stated.  Accordingly r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision even though all applicants are now over 18 years of age.

    Spouse or de facto partner – r.1.14(a)(ii)

18. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence before the Tribunal that any of the applicants has had or currently has a de facto partner or spouse within the meaning of the Migration Act. Accordingly, in respect of each applicant 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)

19. 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. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

20. The Australian citizen, Australian permanent resident or eligible New Zealand citizen must be a ‘relative’ of the applicant.[2]  Relative is defined in r.1.03 to mean:

    ·a ‘close relative’ - which is defined by r.1.03 to mean partner, child,[3] parent, brother, sister, or a step-child, step-brother or step-sister; or

    ·a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

    [2] r.1.14(a)(iii).

    [3]  ‘Child’ is defined in s.5CA of the Act and r.1.14A(2) of the Regulations.

21. Although the definition of relative includes a person’s partner, r.1.14(a)(ii) precludes an applicant from being an orphan relative if the applicant has a partner.

22. The sponsor migrated to Australia in 2007. He is an Australian citizen by grant.  Common in respect of each of the applicants, the sponsor has claimed that he is each applicant’s uncle as the applicants’ father was his step-brother.  In his written statement in support of the visa applications, the sponsor claimed that the applicants’ father was his step-brother. When the applicant’s father died, the sponsor’s father married his step-brother’s mother “for protection” and in keeping with tribal tradition. 

23. At the hearing the Tribunal discussed with the sponsor his claim, as noted in the decision record, that the marriage between his father and his step-brother’s (the applicants’ father) mother was for a short period intended for the widow’s protection, rather than an actual marriage and companionship.  The sponsor agreed, stating that his father and the applicants’ grandmother were married for three months before the latter relocated to Saudi Arabia for employment.

24. The Tribunal also notes in his migration journey to Australia, the sponsor never declared the applicant’s father to be his step-brother. In reply both at the hearing and in his written statement, the sponsor explains that he believed that he need only declare full siblings, not half siblings, and the person assisting him with completing the forms also believed that to be the case. The Tribunal does not find this to be a satisfactory explanation.

25. In post-hearing submissions the sponsor tendered a copy of a pharmacy script for pain management medication for himself. The script is dated 18 September 2022. There is no explanation accompanying the script, but the Tribunal infers that the sponsor claims to require the medication because of the stress associated with the visa application process. The Tribunal accepts that a visa application is stressful and often a protracted process for all concerned, however that is a common experience for all parties involved in such matters. The Tribunal is also not persuaded that the sponsor’s need for such medication is sustained and ongoing and can be attributed primarily or mainly to this visa application and merits review. The Tribunal  gives no weight to this evidence.

26. Th other post-hearing submissions is a letter dated 20 December 2021 from the sponsor’s lawyers confirming his instructions to withdraw as a cash payment his entire Insured Benefit and Account balance from his superannuation fund. The sponsor stated at the hearing that he did so in order to finance the visa application procedure. The Tribunal accepts that the sponsor appears to have withdrawn his entire superannuation benefits as a cash payment. However there is no independent verification as to the reasons motivating his actions. Even if the Tribunal were to accept his claim that he did so to fund the applicants’ visa applications, it does not relieve the applications from having to meet the requisite criteria of the visa subclass under which their applications are submitted.

27. After due consideration of the evidence, the Tribunal cannot be satisfied that the applicants are relatives of the sponsor, as defined.  Accordingly, the applicants do not meet the requirement of regulation 1.14(a)(iii), neither at the time of application nor at the time of decision.

    No parental care – r.1.14(b)

28. 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.

29. In his written statement to the Department, the sponsor states that the applicants’ father  was his step-brother, stating that he died when “a boat capsized while enroute to Yemen to seek asylum due to political persecution he received in Ethiopia.”

30. The sponsor also states that the applicants’ mother, Sukare, “has been mentally sick for a long time …declared as completely unable to care for her children and she has been under medication since 2001.”

31. Amongst the documents submitted in support of the adoption there are Minutes from a family meeting dated 4 January’2016, which record the granting to the sponsor custody of the applicant and his siblings. However the Minutes also state that the applicant’s “…biological father, Mr Johar Aman died of disease since their childhood…” 

32. A death certificate in respect of Johar Aman, the applicants’ father (with English translation) has been submitted to the Tribunal, noting the place of death as “Djibouti area” and date of death being 23 October 2004. However there is no indication as to the cause of death. At the hearing, the Tribunal asked the sponsor to explain this lack of detail. The sponsor claimed that given government sensitivities to criticism, it was “better to record the death as being by natural causes, especially since Johar Aman is known to the government.”  The Tribunal does not find this to be a satisfactory explanation. The Tribunal is also concerned about the genuineness of the death certificate issued for the applicants’ father because it neither supports the claim of his death in a boat capsize, nor does it support the alternative claim that he died of disease.

33. Given the contradictory evidence regarding the cause of death of the applicant’s father, the Tribunal believes it has reason to question the veracity of his claims concerning the fate of the applicants’ parents, particularly the claims concerning the death of the applicants’ father.

34. There is no evidence before the Tribunal that the applicant’s mother is deceased. There is evidence concerning her medical condition.  The most recent evidence seems to be a medical outpatient report stating that the applicants’ mother was last seen as an outpatient on 3 December 2015 and, after medication and advice, “was relatively improved.” The witness, Mr Saman Kimo claimed to have seen the applicants’ mother earlier this year during his visit to Ethiopia. He claims that she was barefoot and homeless when he saw her. In response to the Tribunal’s question, he agreed that he did not know her, but his wife pointed out the applicants’ mother to him.  The other witness, Ms Shamsiya Kemal, provided a similar account, saying that she had seen  the applicants’ mother, “barefoot and homeless” in the city of Adama on several occasions. Ms Kemal stated that she had known of her plight because “their families knew each other and she recognised the applicants’ mother from photographs.

35. The Tribunal finds the witnesses’ evidence to be generic in nature and incapable of verification. Mr Kimo admitted to the Tribunal that he did not know or at least recognise the applicant’s mother and it was his wife who allegedly pointed her out in the street. The Tribunal gives little weight to their evidence.

36. The Tribunal notes that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and the Regulations have been met. Although the concept of ‘onus of proof’ is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.

37. For the reasons stated above, the Tribunal is not satisfied that the applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal therefore is not satisfied that the any of the applicants  meet the requirements of Regulation subclause 1.14(b).  Consequently, the Tribunal finds that none of the applicants meets the requirements of regulation 1.14(a)(iii) and 1.14(b.

38. Given the findings above, cl.117.211 is not met by any of the applicants.

39. The Tribunal finds that the applicants do not continue to satisfy the criterion in cl.117.211, and this is not only because each of the applicants have turned 18. It follows that cl.117.221 is not met by any of the applicants.

40. For these reasons, the criteria for the grant of a Subclass 117 visa are not met by any of the applicants. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    decision

41. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Stephen Conwell
    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.