Ali (Migration)

[2020] AATA 6053

Ali (Migration) [2020] AATA 6053 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Abdi Ubah Ali

VISA APPLICANT:  Master Ismail Abdikarin Yusuf

CASE NUMBER:  1729129

DIBP REFERENCE(S):  2017024146 OSF2017024146

MEMBER:Christine Kannis

DATE:11 December 2020

PLACE OF DECISION:  Perth     

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

Statement made on 11 December 2020 at 6:51am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – 117 (Orphan Relative) visa – visa applicant has not turned 18 at the time of application – visa applicant is the nephew of the review applicant – death certificates were counterfeit – not satisfied both the visa applicant’s parents are dead – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65, 359

Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.211, 117.221

CASES
EC v MIMIA [2004] FCA 978
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 Immigration on 14 September 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 February 2017. 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). Relevantly to this case, they include cl.117.211 and cl.117.221.

3. The visa was refused because the delegate was not satisfied that the visa applicant was a relative of the review applicant or that the visa applicant’s parents are either deceased or incapacitated or missing and therefore, he did not meet cl.117.211.

4. The review applicant appeared before the Tribunal on 16 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband, Mr Abdirahman Yusuf Jama, and by telephone from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

6. Following the hearing the Tribunal decided to affirm the decision under review and a Decision Record dated 4 December 2020 was sent to the review applicant. That Decision Record referred to the birth certificates for the review applicant’s husband and the visa applicant’s father not having been provided. Subsequently, the review applicant’s representative brought to the Tribunal’s attention that these birth certificates had been provided prior to the hearing. The birth certificates were not before the Tribunal at the time of decision on 4 December 2020 and were therefore not considered. In these circumstances the Tribunal decided to re-open and reconsider the matter taking into account this evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant is an orphan relative of an Australian relative. 

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

9. 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.

10. In the present case, the review applicant, Ms Abdi Ubah Ali, is the relevant Australian relative.

11. ‘Orphan relative’ is defined in r.1.14 of the Regulations, which is extracted in the attachment to these reasons. Regulation 1.14. says a visa 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 spouse or de facto 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’. 

12. The Tribunal notes that in meeting the criteria all aspects of the definition must be considered and met.  If the visa applicant does not meet one aspect of the definition in r.1.14 then he cannot meet cl.117.211.

13. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative 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.

    Age – r.1.14(a)(i)

14. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicant’s passport indicates his date of birth is 5 October 1999. At hearing the review applicant and the visa applicant confirmed that the visa applicant’s date of birth is 5 October 1999.

15. The application was lodged on 17 February 2017.

16. The Tribunal has no evidence that the applicant’s date of birth is 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 the visa applicant is now 21 years of age.

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

17. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. At hearing the review applicant and the visa applicant confirmed that the visa applicant does not have a spouse or de facto partner. The Tribunal is prepared to accept that the visa applicant does not have 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)

18. 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.

19. The review applicant is an Australian citizen.

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

    • a ‘close relative’ - which is defined by r.1.03 to mean spouse or de facto 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.

    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.

    [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. The review applicant has claimed that she is the visa applicant’s aunt by marriage. She told the Tribunal that the visa applicant is the son of her husband’s deceased brother. In a statutory declaration dated 26 October 2020, the review applicant said her husband’s half-brother, Abdikarin Yusuf, passed away on 21 March 2011. She said her husband and his half-brother had the same father but different mothers.

22. The review applicant told the Tribunal that she did not meet the visa applicant’s father. She said when she joined the family in December 2010 her husband told her about all his brothers and sisters and told her that his half-brother lived in Somalia with his child, the visa applicant in the present matter. She said this half-brother died in an explosion in March 2011 and the child (the visa applicant) lived with her stepson’s mother until 2013.

23. An undated statutory declaration made by the review applicant’s husband, Mr Abdirahman Yusuf Jama, was before the Tribunal. He stated that he and the visa applicant’s father were half-brothers and said his half-brother died in 2011.

24. In an undated statement signed by the visa applicant he said the review applicant’s husband is his father’s half-brother. At hearing the visa applicant told the Tribunal that the review applicant is his uncle’s wife.

25. As noted, the decision under review was originally affirmed on 4 December 2020. At that time the Tribunal did not have before it or take into account birth certificates which had been provided for the visa applicant, the visa applicant’s father and the review applicant’s husband. As a result, on 4 December 2020 the Tribunal was not satisfied that the visa applicant is a relative of an Australian citizen and decided r.1.14(a)(iii) was not met at the time of application.

26. The Tribunal has reconsidered the matter in light of the evidence of the birth certificates provided. A birth certificate for the visa applicant indicating Abdikarin Yusuf is his father was provided. Birth certificates for Abdikarin Yusuf and Abdirahman Yusuf Jama were provided, both of which indicated their father was Yusuf Jama.

27. The review applicant has provided counterfeit death certificates (see below) which leads the Tribunal to have concerns about the genuineness of the birth certificates. Nevertheless, the Tribunal has not referred the birth certificates to the Department for verification and there is nothing to indicate that the birth certificates are not genuine. Accordingly, based on the birth certificates, the oral testimony at hearing and the written evidence, the Tribunal finds that the visa applicant is the nephew of the review applicant and therefore he meets r.1.14(a)(iii). 

    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 the Form 40CH lodged in this matter, the visa applicant’s female parent, Roda Mohamud Farah is indicated to be deceased. No selection was made for his male parent as to whether he is dead, whereabouts unknown or permanently incapacitated. The male parent is not named. The Form 47CH lodged in this matter indicates the visa applicant’s mother, Roda Mohamud Farah is deceased however the name of the visa applicant’s father is not provided and there is no indication of whether he is alive or deceased. The Tribunal noted that these forms were signed by the review applicant on 5 February 2017 and asked her the reason for not including any information about the visa applicant’s father. She said she provided all the information to her previous migration agent and paid his fee. She said she had not signed the Forms CH40 and CH47. The review applicant’s current representative requested time to obtain these documents and provide further comment. The Tribunal allowed the review applicant additional time to make submissions. Following the hearing the review applicant provided a statutory declaration dated 29 November 2020 in which she said that she had signed the forms without checking the information because she had trusted her previous migration agent and because she was struggling with a pregnancy and looking after three children at the time.

30. The Form 47CH indicates that the visa applicant lived in Somalia from January 2007 to August 2013 and from August 2013 he has lived in Kampala.

31. In a document described as a statutory declaration made on 11 March 2017, the visa applicant said he is the biological son of the Abdikarin Yusuf Jama and Roda Mohamud Farah. He said on 21 March 2011 his father died as a result of an explosion and on 14 August 2001 his mother died while giving birth to his brother.

32. In an undated statement signed by the visa applicant he said the review applicant and her husband took responsibility for him in 2015. He said his mother died in childbirth in 2001 and he was in his father’s care from 2001 to 2011. He said his father died in 2011 and he left him in an aunt’s care in Mogadishu and she died in 2013. He said he lived with villagers from 2013 to 2015. He travelled to Uganda in 2015 with the review applicant’s husband’s son from a previous relationship. He said the review applicant and her husband provide everything for him to get a good education. The oral evidence provided by the visa applicant at hearing was consistent with the information in the statement.

33. In a statutory declaration dated 26 October 2020 the review applicant said the visa applicant’s father passed away on 21 March 2011. She stated that the visa applicant’s mother passed away on 14 August 2001. She said she and her husband have been financially supporting the visa applicant since 2015. She said the visa applicant is a full-time student, has never worked and relies on them to pay all his living expenses including his education expenses. She said the visa applicant and her stepson (the review applicant’s husband’s son from a previous relationship)  live together and she and her husband send money to her stepson because he is the elder of the two and is in charge of the money.

34. The review applicant told the Tribunal that she and her husband send the visa applicant and her stepson AUD $200-$250 per month. She said this pays for their rent, food and study expenses. She said the visa applicant has no other family in Somalia or Uganda and he relies on her and her husband for financial support. The visa applicant and Mr Abdirahman Yusuf Jama provided consistent evidence in this regard.

35. In an undated statutory declaration, the review applicant’s husband said his half-brother, Abdikarin, died in 2011. He said Amina informed him that his half-brother died in 2011. Amina is the mother of Abdirashid, his son from a previous relationship.  He said he and the review applicant took responsibility for the visa applicant from 2015.

36. A death certificate signed by the Mayor of Mogadishu on 4 April 2011 was provided. The document indicates that Abdikarin Yusuf Jama died on 21 March 2011. The document states it was made on the basis of the personal request of Weydiinta Qotka. The document states that it is concerning the name Qusayso Qofkan. The Tribunal asked the review applicant about the names Weydiinta Qotka and Qusayso Qofkan. She was unable to provide any information about the identities of these people. The Tribunal asked her how she obtained this death certificate, which she provided to the Department in support of the visa application. She said she talked to the visa applicant and her stepson and told them to obtain proof of the death.

37. Prior to the hearing the review applicant provided the Tribunal with additional documents which purport to be death certificates dated 12 October 2020 for Roda Mohamud Farah and Abdikarin Yusuf Jama.

38. The Tribunal requested verification by the Department of the death certificates dated 4 April 2011 and 12 October 2020. The Department’s verification process concluded that the death certificates were counterfeit. Prior to the hearing the Tribunal wrote to the review applicant pursuant to s.359A of the Act and invited her to comment on the adverse information. In response the review applicant’s representative noted that the review applicant had withdrawn another Subclass 117 visa application because the visa applicant’s parent in that case had been found alive. The representative requested that given this, the review applicant’s integrity and honesty be considered. The Tribunal noted that a death certificate for the parent now found alive had also been provided to the Department. The Tribunal put this information to the review applicant and she said she had obtained the death certificate from someone in Somalia. She said she had been given the person’s name but she was unable to provide it at the hearing. She said she had not been certain that the visa applicant’s parent in the withdrawn case was deceased. The Tribunal pointed out that despite this she had provided a death certificate to the Department. In her statutory declaration dated 29 November 2020, the review applicant said the reason she provided the death certificate was because nobody knew whether the parent was alive or not and the authorities did not have a proper record of whether he had died and so they relied on the testimonies of witnesses. She said she had no choice but to rely heavily on the villagers’ testimonies.

39. Prior to the hearing the review applicant’s representative advised that after receiving the s.359A letter, the visa applicant contacted the issuing department and was advised that the department could not take any further action as it had already issued the death certificates as per their records and advised the visa applicant to go to court. No documentary proof of this advice was provided. A statement of two villagers who had known the visa applicant’s parents and could testify that they had passed away was provided. The statement was made by Jamal Abdinsir Mohamed and Abdisalan Salah Warsame. The statement said:

    After oath in front of the district court, they verified the death of Abdikarin Yusuf Jama, his Mother name Asli Jama Dirir, born 17/06/1980, born in Kismao Somalia. Die in Mugadishu, at the date of 21^st March 2011, after explosive placed near the road detonates to him and his fellow soldiers.

    On the other hand, the court they verifying the death of Rod Mohamud Farah, her mother name Khadija Mohume Dirir, who was the wife of Abdikarin Yusuf Jama, she died on 14^th August 2001. The case of her death was maternal death, she was giving birth her second child who also died with her.

    Both deceased parents left one child named Ismail Abdikarin Yusuf his mother name Roda Mohamud Farah, who was born 05/Octobcr1999.

    The court has certified the authenticity of the deaths mentioned above. its verified death compatible with the Islamic Sharia Law and Somalia National Law. The court has referred the Above two witnesses. It has documented and restored to the national register.

40. The statement, dated 9 November 2020, appeared to be a translation of a statement dated 8 November 2020, however no evidence that the document was a certified translation was provided.  The untranslated statement bears a seal which refers to the Somalia Federal Court. The statement did not include information regarding the relationship of the two people making the statement to the visa applicant’s parents or the basis of their knowledge of the deaths. The Tribunal noted that the visa applicant’s mother was stated to have died 19 years ago. The visa applicant told the Tribunal that the two people who made the statement were neighbours of his parents in 2001 and in 2011.

41. Following the hearing the review applicant’s representative wrote to the Tribunal and repeated the review applicant’s evidence given at hearing regarding her claim that she did not know the death certificates she provided were counterfeit. The representative said the review applicant was prepared to travel to Melbourne to request death certificates from the Somali Consulate.  In this case the review applicant has provided three death certificates which the Department have assessed as counterfeit. A counterfeit death certificate was initially provided to the Department and subsequently the review applicant provided two counterfeit death certificates to the Tribunal. The Tribunal is of the view that the death certificate provided in the withdrawn matter is likely also to be counterfeit. The Tribunal acknowledges the lack of systematic death registration in Somalia however the provision of fraudulent documents cannot be disregarded by the Tribunal. The Tribunal considered the oral and written evidence and decided that even if further additional death certificates were provided by the review applicant, it could not be satisfied, based on all the evidence, that both the visa applicant’s parents are dead. There were no claims that the visa applicant’s parents were permanently incapacitated or of unknown whereabouts. 

1. Accordingly, r.1.14(b) was not met at the time of application.

   Has the applicant been adopted by the Australian relative?

2. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship for applicant to meet this criterion: EC v MIMIA [2004] FCA 978. There is no evidence that at the time of application the visa applicant was adopted by the Australia relative and the Tribunal finds that, at the time of application, the visa applicant did not meet cl.117.211(b).

3. Accordingly, cl.117.211(b) is not met, and does not continue to be met at the time of decision.

4. Given the findings above, cl.117.211 is not met.

5. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, and this is not only because he has turned 18. It follows that cl.117.221(a) and (b) are not met by the visa applicant.

6. For the reasons stated above, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.

   DECISION

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

   Christine Kannis
   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.