Dirie (Migration)

[2018] AATA 261

Dirie (Migration) [2018] AATA 261 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Zahra Mahamoud Hassan Dirie

VISA APPLICANT:  Ms Roda Mohamoud Deria Hassan

CASE NUMBER:  1616419

DIBP REFERENCE(S):  2014044298C

MEMBER:Kira Raif

DATE:13 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2018 at 2:03pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – DNA testing – Court Order – Insufficient evidence – Legal and customary adoption

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.14, Schedule 2 cls 117.111, 117.211, 117.221

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 27 July 2016 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 is a national of Somalia. She applied for the visa on 18 June 2014. The delegate refused to grant the visa because the applicant did not meet cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was the orphan relative of an Australian relative. The sponsor (‘the review applicant’) is seeking review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 10 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. 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.

6. ‘Orphan relative’ is defined in r.1.14 of the Regulations. 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.

   Is the visa applicant an orphan relative of the sponsor?

7. The review applicant provided to the Tribunal copies of the primary decision record relating to the visa applicant.

8. The visa applicant claims her father is Mohamoud Deria Hasan and her mother is Fadumo Ali Ahmed and that both are deceased. She presented death certificate for the father dated 21 November 2008 stating he died in Abu Dhabi and hospital records for her mother dated 20 June 2013 indicating she died in Somalia. These documents had been verified by the Tribunal as being genuine and the Tribunal accepts these deaths occurred.

9. DNA testing indicated there is unlikely to be an aunt / niece relationship or sibling / half sibling relationship between applicant and sponsor and the Tribunal finds they are not biologically related. The visa applicant provided with the application a court document from Somalia, stating that Roda was found in Burao in January 2000 and was adopted by Mohamed Deria Hasan. The review applicant also claims Roda was adopted by her family. To prove adoption, the parties provided a court document from Somalia stating that the mother of Roda is Asha Mohamoud Mohamed. The child was born in January 2000 and the mother died in hospital on the day after childbirth. It is stated that after the death, Mohamoud Diria took custody of Roda and sibling Rahma. The delegate found that the court document is not a confirmation of formal adoption, does not indicate what happened to the child’s father and does not indicate that due process had been followed to approve adoption or guardianship. The delegate was not satisfied that this child was adopted either through customary or formal adoption.

10. The review applicant representative claims in her submission of 9 August that the child was customarily adopted at birth, following the death of her mother Asha Mohamed. The representative notes that the death certificate for Roda’s father shows that he died before the child’s birth from a heart attack. The representative notes that following 1991 there were no formal adoption facilities in Somalia. The representative notes that the birth certificate was issued shortly after birth.

11. The Tribunal acknowledges that evidence of the adoption has been provided but the Tribunal considers such evidence inadequate. The Tribunal shares the delegate’s concerns in relation to the court order issued in Somalia, noting that it does not reflect legal adoption and the review applicant’s evidence is that formal adoption was not available. As for customary adoption, there is insufficient evidence of such adoption. Even if the Tribunal were to accept that the child lived with the review applicant’s family, that does not necessarily establish adoption. There could have been any number of arrangements, including guardianship or foster care and there is little evidence to show that the claimed adoption was done in accordance with the recognised custom. There is insufficient evidence to satisfy the Tribunal that this child was adopted by the review applicant’s father and the Tribunal is not satisfied that she is an adoptive sibling, and a relative of the sponsor.

12. The Tribunal is not satisfied the visa applicant is an orphan relative of an Australian relative and she does not meet cl. 117.211 and cl. 117.221.

13. The delegate also noted in the primary decision that the visa applicant’s identity cannot be ascertained, suggesting that the visa applicant had previously made a visa application in a different name. The review applicant denies that this occurred and she requested the Tribunal to obtain formal verification of the visa applicant’s identity, providing a photograph of the visa applicant. In February 2018 the Department informed the Tribunal that such verification cannot be done. As such, the Tribunal does not draw any adverse conclusion from the suggestion that the visa applicant may have used a different identity in the past.

14. There is no suggestion that the visa applicant is a child or an adopted child of the review applicant. She does not meet the requirements for the grant of the Subclass 101 and Subclass 102 visas.

    Conclusion

15. 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

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

    Kira Raif
    Senior Member