Arbakoy (Migration)

[2018] AATA 77

Arbakoy (Migration) [2018] AATA 77 (9 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdikadir Aliyow Arbakoy

VISA APPLICANTS:  Miss Farhia Ahmed Osman Mohammed
Miss Muna Ahmed Osman Mohammed
Miss Safiah Ahmed Osman Mohammed
Mr Ali Ahmed Mohamed Mohammed
Miss Hindiya Ahmed Osman Mohammed
Mr Abdirashed Ahmed Osman Mohammed
Miss Naima Ahmed Osman Mohammed

CASE NUMBER:  1701663

DIBP REFERENCE:  OSF2016/036853

MEMBER:Rosa Gagliardi

DATE:9 January 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets 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 09 January 2018 at 2:38pm

CATCHWORDS

Migration – Child (Migrant) (Class AH) visas – Subclass 117 (Orphan Relative) – Review applicant – Biological uncle of the visa applicants – No parental care – Parents whereabouts unknown

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03,1.14, 1.14(a)(i)-(iii), 1.14(b),1.14(c) Schedule 2 cls 117.111, 117.211(a)-(b), 117.221

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 Immigration on 3 January 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 5 September 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 (the Regulations). Relevantly to this case, they include cl.117.211 which requires the applicants to be a ‘relative’ as defined of the sponsor and requires the Tribunal to be satisfied that the parents are either deceased or incapacitated or missing.

4. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.211 of Schedule 2 to the Regulations because he/she was not satisfied that the applicants’ parents are deceased, permanently incapacitated or of unknown whereabouts.

5. The review applicant appeared before the Tribunal on 18 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the eldest of the visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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.

9. ‘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, Mr Abudkadir Aliyow Arbakoy, is the uncle of the applicants and therefore he is the relevant Australian relative. This biological relationship has been established as the Tribunal requested the applicants undergo DNA testing to put the matter beyond doubt.

10. For the reasons below, 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) continues to be met at the time of decision.

    Age – r.1.14(a)(i)

11. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. Age in the absence of determinative evidence is always difficult to determine by the Tribunal.  Even bone density testing has proven a controversial method of estimating age as the margins of error are significant.  On the other hand, relying on the appearance of an applicant is also far from probative as factors such as poverty and deprivation can often lead to an applicant appearing much older than they may actually be.  

12. In this case, the department relied on the fact that the applicants provided copies of their Somali passports and their resident identity cards indicating issuance from Saudi Arabia where they are currently residing.  As a consequence, the delegate wrote, “Consistent declaration of ages and identity documents presented for Applicants 1,2,3,4,5,6 and 7 support claims that each applicant was under the age of 18 years old at the time of the application”.  The Tribunal has no reason to deviate from this finding.

13. Accordingly r.1.14(a)(i) was met at the time of application and continues to be met at the time of decision.

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

14. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The delegate noted in his/her decision that the applicants had consistently declared that they are single, not engaged and not married.  As there is no information before the Tribunal to the contrary, the Tribunal also accepts that the secondary applicants were single and unmarried at the time of application and continue to be so at the time of decision.  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)

15. 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.

16. The delegate was not satisfied that in the absence of probative evidence, the applicants met r.1.14(a)(iii).  DNA testing was not undertaken because other concerns were identified and these were not limited to the issue of whether the parties were related. 

17. In the interests of natural justice and at the insistence of the review applicant who conveyed that the outcome of the DNA testing would confirm his credibility, the Tribunal arranged for testing to occur.  On 15 December 2017, Genomic Diagnostics provided the Tribunal with the results of the tests conducted indicating that the uncle/nephew/niece analysis provided strong/moderate support generally of their relationship as either uncle/nephew or uncle/niece.  Only for one of the nieces there was an unusual finding that she may not be the niece of the review applicant (Farhia Ahmed Osman Mohamed) but given that when Farhia was tested against the other siblings the relationship was confirmed as siblings, it was concluded that it could be inferred, that if Abdikadir Arbakory is related as the biological

18. uncle of all the other applicants, that the review applicant was also the biological uncle of Farhia Ahmed Osman Mohamed.

19. 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)

20. 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.

21. The narrative of the applicants’ life and their biological parents as provided by the review applicant is set out below:

    ·According to the review applicant he was born in Somalia in approximately 1981.  His mother’s name was Habiba Mohamed Mursal. His father’s name was Aliyow Arbakoy Isaak.  The review applicant does not know his correct date of birth because he was born at home and his mother and grandmother had never been to school to be able to record dates and at that time it was normal for the authorities not to provide contemporary birth certificates;

    ·The review applicant was the eldest male child in the family and the applicants’ mother, Shukri Abdulkadir Ali, was the review applicant’s mother’s older sister.  Shukri was also born at home so there is no birth certificate to verify her date of birth;

    ·In about 1993 the review applicant’s remote relatives took him from his biological family for safety reasons (his father had been killed in the war) and he was brought to a Kenyan refugee camp in Banadir close to Mombassa and he started living with these remote relatives as a member of the family;

    ·On 28 August 1996 the review applicant came to Australia on a Humanitarian visa from Kenya as a member of the family who adopted him and who brought him to Kenya.  His name at that time was Liban Isaak Aden and the relevant travel document has been submitted.  The review applicant at the time was 15 years of age;

    ·After the review applicant came to Australia he was told by his adopted parents that he could not tell anyone about the existence of his biological family and he was scared to talk to anyone about  their existence as he had come to Australia as a part of a member of a different (adopted) family;

    ·In approximately 2006 the review applicant found his biological family overseas and in 2007 he travelled to Jeddah, Saudi Arabia to visit his biological relatives (the applicants and their parents), including his mother Habiba. The review applicant has provided evidence of his tickets for travel then.  A photograph of the review applicant with the applicants dated 28 September 2007 has been provided.  During this trip the review applicant married;

    ·The review applicants were born in Jeddah, Saudi Arabia at home due to the absence of money to pay for hospital fees and they do not have birth certificates or any other registration documentation.  Financial constraints also meant that the applicants could not attend school;

    ·In 2009 the review applicant returned to Jeddah, Saudi Arabia to see his wife and his biological family.  He again spent time with the applicants and their parents.  On this visit he met his mother, Habiba, in Mandera on the border of Somalia and Kenya.  Video and photographic material is available depicting the applicants and their parents during the review applicant’s travel there in 2009;

    ·The review applicant did not visit his relatives after 2009 as he purchased a home in Australia and had his own family, even though there is evidence of regular funds being sent to the applicants consistently over time after he became aware of their location;

    ·Sometime in mid-October 2016 it is claimed that the mother of the children went missing.  She had been having issues with the father of the children and due to mental health issues has not been heard of since.  The review applicant found out through the best friend of the applicants’ mother;

    ·The applicants’ father has been missing since 25 December 2015 when he was last seen with a woman;

    ·The applicants currently live in Jeddah, Saudi Arabia.  Their missing mother’s friend, Faduma Ali Abdirahman is looking after the applicant by coming to their house on a daily basis but she has her own family and is struggling to look after the applicants;

    ·The review applicant had purchased an investment home in Somalia and he organised for his tenants to send the rental income directly to the applicants; and

    ·It is claimed that the review applicant’s mother, Habiba, is now deceased.

22. Cases such as this, where evidentiary material is limited and where such material is difficult to obtain are difficult to adjudicate.  A decision-maker often has little to rely on but the review applicant’s credibility and whether there are consistencies in an account.  In this case, the Tribunal has been persuaded by the credibility of the review applicant and the applicants which was reinforced by the outcome of the DNA testing.  While the department’s decision raised several queries about the case as a whole, the review applicant has been able to provide further evidence at the time of review which also strengthens his credibility and his claims that the applicants have no parental care and are living on their own in Saudi Arabia. 

23. For example, the department was concerned that it appeared that the review applicant did not have any contact with his biological family for a period of 10 years.  In fact it is strongly argued that the review applicant was communicating with his mother, Habiba and his sister, the mother of the applicants, since 2006.  Early communication in 2006 was conducted by phone card.

24. The review applicant has also explained the reasons he commenced the process of sponsoring the children to Australia after his sister, their mother, went missing.  The review applicant theoretically could have sponsored his biological mother to Australia but he was too frightened to reveal to the authorities that he had a family overseas.  As a result of him postponing an application for his mother to migrate to Australia, his mother passed away in 2013 as she became ill and could not get medical assistance in Somalia.  The review applicant argued at hearing that he still deeply regrets that he did not sponsor his mother to Australia and considers he is to blame for her passing as her life might have been spared had she been in Australia.  Hence, when the applicants’ mother went missing the review applicant acted immediately to sponsor his nieces and nephews and to take responsibility for them. 

25. The review applicant has also been able to clarify important anomalies observed by the department at the time of decision.  The department placed no weight of photos of the review applicant and his biological family in Saudi Arabia dated 2008 because his movement records showed that he was not outside Australia at the time.  The review applicant has explained that he was outside Australia in 2007 and 2009 and has provided his expired passport with visas to Saudi Arabia for 2007 and 2009, Kenya for 2009, and passport border stamps as evidence that he visited these countries during these years.  The review applicant has explained that the reason his camera had marked photographs with the wrong dates is because the date settings were wrong when he purchased the camera and the photos should have been dated 2009 and not 2008.  He finally managed to fix the settings and other later photos have the correct 2009 date on them.  The review applicant has submitted flight tickets showing he arrived in Nairobi, Kenya on 21 September 2009 and departed on

    
    

    21 November 2009, hence the Tribunal finds the review applicant is being truthful about being out of the country during those dates. 

26. The department also stated in its decision that it was not plausible that children could be living on their own in Saudi Arabia without a parent or guardian.  Nonetheless, the review applicant has argued that the applicants’ mother’s friend has taken some responsibility for the children and they are not viewed as living without a guardian even if this person is not a legal guardian. 

27. At the time of application the review applicant had submitted a letter that appeared to be from the Saudi Arabian authorities attesting to the fact the applicants’ mother and father were missing.  The department placed limited weight on this document, however, as it did not appear to conform to other official documentation.  The Tribunal does not have reason to find the document is either genuine or false but considers that even if the document had been obtained for the purposes of the application, it does not automatically follow that the claims that the applicants are orphaned relatives are false.  In the absence of an ability to obtain authoritative documentation given the applicants’ precarious residency status in Saudi Arabia, it may be that the document was falsified.  But this would simply be conjecture on the part of the Tribunal.  No forensic analysis of the document has been conducted by the Tribunal. If the department were to find that the document was not genuine through testing it would have the option of imposing Public Interest Criteria 4001 to prevent the application from progressing further and indeed could impose a ban preventing the applicants entering Australia for a period.

28. Having weighed the additional information provided since the time of application and in weighing all the evidence, the Tribunal is satisfied that the applicants’ parents’ whereabouts are unknown and that 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)

29. 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 Tribunal has no evidence that the applicants would be coming into the care of the review applicant forcibly.  Further, the Tribunal is satisfied that the review applicant is determined to give the applicants an education and guidance in ensuring integration into Australian society.   Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

30. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 and, as yet, none of the applicants have turned 18 years of age.  It follows that cl.117.221 is met.

31. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

32. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets 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.

    Rosa Gagliardi
    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.