Asghari (Migration)

[2018] AATA 102

Asghari (Migration) [2018] AATA 102 (12 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Feroza Asghari

VISA APPLICANTS:  Mr Rahmatullah Ahmadi
Ms Zahra Ahmadi

CASE NUMBER:  1605248

DIBP REFERENCE(S):  2014/022363

MEMBER:Kira Raif

DATE:12 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2018 at 7:38am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Self-reporting on passport and tazkera – Details on family Koran – Unable to determine applicant’s age – Conflicting evidence – Mother’s incapacity

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14(a), cls 117.111, 117.211, 117.221

CASES
Nguyen v MIMA (1998) FCA 1307

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 and Border Protection on 23 February 2016 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 are nationals of Afghanistan and claim to be born in 1997 and 1999 respectively. The visa applicants applied for the visas on 20 July 2014. 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 Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the visa applicants were orphan relatives of their Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 2 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. Clause 117.211 of the Regulations 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.

6. ‘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.

   Are the visa applicants orphan relatives of an Australian relative?

7. The review applicant provided to the Tribunal a copy of the primary decision record and the Tribunal relies on the information provided in that document.

   Visa applicants’ ages

8. The first named visa applicant, Mr Ahmadi claims to have been born in July 1997 and that he was 17 years old at the time the application was made. The visa applicant presented as evidence of his age an Afghani passport and a tazkera and he stated that he knew his age as his date of birth was recorded in the family Koran as being 11 July 1997. The Tribunal is mindful that the passport and the tazkera are not contemporaneously issued at the time of birth and there does not appear to be any independent checking or verification of the date of birth at the time these documents are issued. The visa applicant’s evidence to the delegate at the interview, as set out in the primary decision, is that to obtain the tazkera he had to complete paperwork and present the family Koran, that is, the record of his age in the tazkera is based on self-reporting. The review applicant also confirmed in oral evidence to the Tribunal that the tazkera was obtained on the basis of what the family told the authorities about the dates of birth and the passport was obtained on the basis of the tazkera.

9. The second named visa applicant, Ms Zahra Ahmadi claims to have been born in October 1999 and claimed to have been 16 years of age at the time of her interview in November 2014. She stated at the interview that she knew her age by reference to the tazkera but she was not aware of the process of obtaining the tazkera.

10. As the information in the passport and the tazkera is based on self-reporting and not on any independent verification of one’s age, the Tribunal does not consider these documents to be probative evidence of a child’s age.

11. Similarly, the review applicant provided to the Tribunal a copy of Rahmatullah’s UNHCR card showing his date of birth as 1 January 1997. (He claims to have been born in July 1997.) There is nothing to suggest that UNHCR had carried out any investigation or inquires about the visa applicant’s age and that information would have been recorded on the basis of presented documents or the visa applicant’s own evidence, rather than any independent assessment of his age. The visa applicant’s statement suggests the information was based on his tazkera. The Tribunal does not consider the UNHCR Certificate to be probative evidence of the visa applicant’s age.

12. The delegate noted that in his interview, the first named visa applicant appeared to be much older than his claimed 17 years. The delegate notes that the visa applicant had deep lines across his forehead, a prominent Adam’s apple, a shadow on his face from shaving, age lines around mouth and eyes and receding hairline. He had a thick covering of hair over his arms and a deep voice. The visa applicant also appeared confident in the company of adults and persons of authority. Two Department of Immigration and Border Protection (DIBP) officers subsequently interviewed the applicant and formed the same views about his age. The delegate also made an observation that in her interview the second named visa applicant’s physical appearance also suggested she was older than claimed. The same observation was made by two DIBP officers who interviewed the second named visa applicant. The delegate also noted that if the second named visa applicant was born in 1999 as claimed, she would not be 16 years old at the time of the interview in November 2014. The review applicant argues that children mature differently and it is not possible to determine one’s age merely by appearance. The Tribunal places no weight on these observations because the Tribunal does not consider these to be probative or necessarily accurate.

13. The parties’ evidence is that the first named visa applicant’s age is known because it is recorded in the family Koran. A copy of the relevant page from the Koran was submitted to the delegate and was available to the Tribunal in the course of the hearing. The Tribunal is mindful that at least the first named visa applicant’s date of birth appears to have been altered and while it may have been done at the time of birth and not in any way related to determining his age, it may have also been done at any time since then and relevant to his visa application. The Tribunal acknowledges the parties’ evidence in their submission of 9 January 2018 that the applicants are illiterate and that the record in the Koran is as it was found but the Tribunal is mindful that it is not possible to determine how, why or when the alteration was made. It does, however, bring into question the probative value of that record as evidence of the first named visa applicant’s age.

14. The Tribunal has several other concerns about the visa applicants’ information concerning their dates of births and their ages:

    a.The first named visa applicant stated at the interview that he was two years younger than the sponsor and she claims to be born in 1991, which would mean the visa applicant was born in 1993 and not 1997 as he claims. When the delegate suggested that the applicant may be older than 17, he is recorded to have stated ‘okay’ and he said that he did not really know his age.

    b.According to the primary decision record, the first named visa applicant stated at the interview that the tazkera was obtained in 2012 when he travelled to Afghanistan to try to locate the family Koran. The applicant said he could not recall how old he was in 2012, even though he was interviewed only two years later when he claimed to be 17. The applicant said he could have been 13 or 14 when he went to Afghanistan in 2012, which is not consistent with his claimed age of 17 in 2014 when he made the application.

15. In her written submission to the Tribunal the review applicant notes that the information she gave about the visa applicants’ dates of birth in her own visa application is not consistent with the information now recorded. The review applicant argues that the handwritten reference in the Koran should be given preference over her recollection of her siblings’ dates of birth. The review applicant refers to cultural practices and lack of education as reasons for not recording the correct ages of her siblings. The Tribunal finds these submissions unconvincing. The Tribunal is mindful that when completing a visa application, an applicant would be required to answer all questions and do so in a way that no incorrect answers are given. It is not sufficient to state that due to various factors or lack of knowledge, incorrect information was provided previously but correct information is given now because there is a written record of the children’s dates of birth. There is no obvious reason why the review applicant could not have consulted that written record, the recording in the family Koran, to check her siblings’ dates of birth when completing her own visa application. The Tribunal does not accept that the review applicant’s earlier evidence provided in support of her own visa application should be completely disregarded and that the information in the family Koran must necessarily be given preference.

16. There is additional evidence before the Tribunal that was not before the delegate, including statements from a third party concerning the visa applicants’ ages and the first named visa applicant’s hospital records. As far as the statement from the third party is concerned, the Tribunal does not consider that to be probative evidence because the Tribunal does not consider this person would necessarily be expected to know or recall the precise date of birth of others. The Tribunal has also considered the hospital records from Bolan Medical Complex in Quetta. One refers to the visa applicant being 12 years old at the time of admission in August 2009 and the second refers to him being 16 years of age in February 2013, which is not consistent with the claimed date of birth. The review applicant notes that at the time of these admissions, her brother had not yet obtained the Koran and did not know his date of birth but the year of birth is consistent on both records. That suggests that the hospital papers record the visa applicant’s date of birth as he had stated it himself. That is, these records are based on the visa applicant’s own belief as to when he was born and no other evidence. Given the various concerns outlined above, and in particular the visa applicant’s evidence in his interview with the delegate, the Tribunal is not convinced that the visa applicant’s knowledge and recollection of his date of birth is necessarily accurate. The Tribunal does not consider that the hospital records identifying his date of birth on the basis of such recollection offer probative basis of the visa applicant’s date of birth.

17. The review applicant’s evidence to the Tribunal suggests that all the documentary evidence of the visa applicants’ ages, other than the recording in the Koran, is based on the tazkeras which are based on the self-reported dates of birth. The review applicant states that the contemporaneous information about births was recorded in the family Koran. The review applicant’s evidence to the Tribunal is that it is a local tradition to record significant family dates, including dates of birth in the family Koran. However, the review applicant also states that they were unaware of that until the time when the visa applicants had to provide evidence of their births and it is only at that time when they visited the home village that the village elders told them about the tradition. The Tribunal considers it unlikely, if not implausible, that the visa applicants and the review applicant would be entirely unaware of the common practice. The review applicant explained that they lived in difficult circumstances and were too young but the Tribunal is mindful that the children were at least teenagers and the Tribunal is not convinced that they would have been so young as to be entirely unaware of such significant family practices. The Tribunal does not accept that the visa applicants and the review applicant knew nothing about the recording of their births in the Koran until about 2012 or 2013, which is the time they were preparing their migration matters. As noted above, the Tribunal is also concerned that the record in the Koran may have been altered.

18. Overall, the Tribunal finds that there is conflicting evidence about the visa applicants’ dates of birth. There are ‘official’ records such as the tazkera and passports which are not contemporaneous and appear to have been based on self-reported age. The subsequent documents such as the passport and UNHCR registration and education papers, were also based on tazkeras which may be unreliable. There is a statement from another person who may not necessarily have precise or accurate knowledge of the matter. The two hospital documents from Quetta relate to the same year but provide inaccurate dates of birth for the first named visa applicant and also appear to be based on self-reported age. The review applicant also refers to having provided different information about her siblings’ dates of birth in her own visa application. There is also inconsistent information given by the visa applicants in their interviews, as recorded in the primary decision record, for example, concerning the age difference between the first named applicant and the review applicant. Given all these discrepancies, the Tribunal does not consider the presented evidence of the visa applicants’ ages to be probative or reliable. The Tribunal does not accept the presented evidence as evidence of their dates of birth.

19. As the Tribunal cannot determine the visa applicants’ ages, the Tribunal cannot be satisfied they were under the age of 18 when the application was made. That is, the Tribunal is not satisfied that each of the visa applicants had not turned 18 at the time of the application and they do not meet r.1.14(a). They are not orphan relatives of the review applicant and do not meet cl. 117.211 and cl. 117.221.

    Orphan relatives

20. In light of the finding above, it is not necessary for the Tribunal to consider the remaining criteria but the Tribunal makes the following findings.

21. Both visa applicants claim that their father Jan Ali Ahmadi is deceased. They claim that their father went missing in 2000 while travelling from Pashi to Kabul and is presumed dead but there is no evidence of death. In support of the claimed death of their father, the visa applicants provided declarations from two persons and the delegate accepted, having regard to common law presumption of death, that the father is deceased. The Tribunal accepts, for the purpose of this review, that the father is deceased.

22. The visa applicants claim that their mother Safiya Ahmadi is of unknown whereabouts. At the interview with the delegate, the visa applicants stated that they lived with their mother after she re-married until 2009 when the mother and step-father left and they state they had not seen their mother for about a year. The delegate found their evidence about the mother’s whereabouts to be vague and unconvincing. On that evidence, the delegate was not satisfied the mother’s whereabouts were unknown or that the mother was incapacitated. There is no suggestion that the mother is dead.

23. The visa applicants provided statements to the Tribunal in which they outline the family circumstances. The visa applicants claim that their mother re-married in June 2008 to Khan Ali and the new husband did not accept the children as part of the marriage. The visa applicants provided a statement from their mother dated June 2013 where she passed custody of the children to the sponsor. On 19 December 2017 the review applicant provided to the Tribunal a number of declarations from various family members, as well as her own declaration, setting out the family’s living arrangements and her responsibilities for the care of the siblings following their mother’s re-marriage. She told the Tribunal in oral evidence that her mother made an arrangement with the review applicant’s husband that upon marriage, he would take care of the visa applicants. The Tribunal notes that such statements do not constitute a formal transfer of custody and there is no evidence that custody has been legally transferred to the sponsor.

24. The review applicant told the Tribunal that after she came to Australia in mid-2011, she had contact with her mother for some time but later on that contact ended. She tried to call her mother’s phone but nobody answered. The visa applicants’ written statements to the Tribunal indicate that after the mother re-married they lived together for some time but then they lived with the sponsor and other relatives and they lost contact with their mother. They state that they saw their mother from time to time and on one occasion her husband tried to extract money from them but when they tried to visit her home again, she was not there.

25. The parties claim that before their mother disappeared, she was incapacitated because due to cultural norms and her husband’s wishes, she was not able to take care of the children. The review applicant provided to the Tribunal some country information about women in Afghanistan and a further report on Afghanistan in their post-hearing submission of 9 January 2018. The review applicant makes reference to the reasoning in Nguyen v MIMA (1998) FCA 1307 to establish that cultural norms are relevant in determining incapacity. The review applicant argues that it is not simply a matter of the mother being unwilling to look after the children but she has been forbidden by her spouse to do so. The Tribunal accepts that this is so and is prepared to accept that the children’s mother may have been prevented from looking after them by her husband. The Tribunal does not accept that the reference to ‘incapacity’ in the context of orphan relatives, which is considered together with a parent’s death and being of unknown whereabouts, refers to mere unwillingness to care. In the Tribunal’s view, incapacity implies inability to care, rather than unwillingness for whatever reason, including cultural norms and instigation of others. More significantly, even if the Tribunal were to accept that the mother was incapacitated to care for the children because of her new marriage, the Tribunal is not satisfied that such incapacity would be permanent. There are any number of events that could end the marriage, including divorce or the death of the spouse. The parties do not claim that the mother herself is unwilling to care for the children, only that she is forced to abandon the children by her husband. That is, if for any reason that marriage was to end, the mother would regain her capacity to care for the children. The Tribunal is not satisfied that the mother’s incapacity is permanent.

1. The parties claim that at the time of this decision, the mother’s whereabouts are unknown. The review applicant and the visa applicants and the review applicant’s spouse provided statements to the Tribunal outlining the steps they took to locate the children’s mother. The review applicant told the Tribunal in oral evidence that she used to have phone contact with her mother but later on the phone was no longer answered. Her husband’s statement is that they approached the mother’s old house but they could not locate the mother or her partner. The visa applicants’ evidence is that they had observed their mother from time to time and had a conversation once with her spouse about money but later on could not locate her. The family may have contacted the mother’s phone number and visited her old place of residence but it is not apparent that any other attempt has been made to locate her. There is no evidence that the family has made contact with the village elders or other local community members or approached organisations such as the Red Cross or the police or the local authorities to locate the mother. The Tribunal acknowledges the review applicant’s evidence that their mother did not want to have anything to do with them, at the behest of her husband. The Tribunal acknowledges the parties’ evidence that there was a poor relationship, because of the mother’s re-marriage, and an unwillingness to maintain contact, and as noted elsewhere, the Tribunal accepts that in such circumstances there may not have been a strong desire to locate the mother but the Tribunal is not satisfied that adequate attempts have been made to locate the mother.

2. The Tribunal has formed the view that the family has made minimal effort to locate the mother. The Tribunal is prepared to accept that there has been limited, if any, contact between the family and the mother but that is not sufficient to establish that her whereabouts are unknown because the Tribunal has formed the view that there has not been adequate steps to locate her. The Tribunal does not accept on the evidence before it that the mother is incapacitated. She may have decided she has no desire to support the children, and may have formed that view in order to maintain her own marriage, but the Tribunal does not consider that incapacity is established by unwillingness to care. There is nothing to suggest the mother has died. The review applicant also suggested that her mother did not have the financial capacity to care for the children but no evidence of that has been presented and the Tribunal is not prepared to accept that claim without probative evidence.

3. On the evidence before it, the Tribunal is not satisfied that the visa applicants cannot be cared for by their mother because she is dead, incapacitated or of unknown whereabouts. For that reason also, the Tribunal is not satisfied the visa applicants are orphan relatives within the meaning of r.1.14.

4. The Tribunal is not satisfied the visa applicants meet cl. 117.211 and cl. 117.221. There is no suggestion that the visa applicants are children of the review applicant, either biological or adopted and, as noted above, there is no evidence of any formal transfer of custody or of adoption, either formal or customary. The Tribunal is not satisfied the visa applicants meet the requirements for the grant of the Subclass 101 or Subclass 102 visas.

5. The Tribunal wishes to acknowledge the helpful submissions made by the applicant’s representative Mr Henry Christie.

   Conclusion

6. For these reasons, 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 decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

   Kira Raif
   Senior Member