DORE (Migration)

[2017] AATA 2550

DORE (Migration) [2017] AATA 2550 (7 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Zahro DORE

VISA APPLICANT:  Miss Warda HASSAN DORE

CASE NUMBER:  1703366

DIBP REFERENCE(S):  2015075263 OSF2015/075263

MEMBER:Kira Raif

DATE:7 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the 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 07 August 2017 at 5:10pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – School records – Mother reported missing – Daily care and control of the child – Truthful witness

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 16 February 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 is a national of Somalia, born in November 1999. She applied for the visa on 16 June 2015. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was the orphan relative of the Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 1 June 2017 to give evidence and present arguments.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 matter should be remitted for reconsideration.

   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). Relevantly to this case, they include cl.117.211.

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, 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.

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

7. The review applicant provided with her application for review a copy of the primary decision record. It indicates that the visa applicant stated on the application form that her father was deceased and presented a death certificate issued in Somalia in October 2015 stating that Hassan Hussein Dore died in January 2012. The delegate noted that the death certificate was issued over three years after the death and gave it no weight.

8. The visa applicant stated that her mother was missing and that she has been cared for by other relatives but since the death of her father, the sponsor held the responsibility for her case. The decision record notes that the visa applicant presented with her application a statement from the Al-Jazeera Secondary school dated May 2015 confirming the visa applicant’s status as a student. The Department contacted the school and was advised that the visa applicant first enrolled in the school in September 2014 and was enrolled by her mother, who is listed as the applicant’s guardian at the school. The school advised that it had contact with the applicant’s mother in May 2015. The visa applicant has now been transferred to another school.

9. The delegate wrote to the visa applicant seeking her comments on that information. The sponsor stated, through her migration agent, that the child’s carer / guardian Amina Dahir Mohamed may have given the impression that she was the mother as she adopted, and acted in, that capacity. The applicant presented another letter from Al-Jazeera school stating that the person who enrolled the child in the school was Amina Dahir Mohamed and the school had known Amina to be the guardian and the contact person. The student registration from the school identifies Amina Dahir Mohammed as the guardian/ parent of the child. The visa applicant provided evidence of enrolment in a new school which also lists Amina Dahir Mohamed as a parent / guardian.

10. The delegate noted, however, that the address Amina Dahir Mohamed provided in her statutory declaration was different to the address the visa applicant gave to the Al-Jazeera school, indicating the visa applicant was not living with Ms Mohamed. The delegate also noted that the school’s initial advice is that the visa applicant was enrolled at the school by her mother and not her guardian. While the delegate acknowledged the applicant’s submission that Ms Mohamed may have given that impression, the delegate was not satisfied that Ms Mohamed did so if the child did not live with her. The delegate also noted that no evidence has been presented to show that any effort has been made to try to locate the mother. The delegate was not satisfied that both parents were dead, incapacitated or of unknown whereabouts.

11. In a written submission to the Tribunal dated 24 May 2017 the review applicant claims she is the aunt of the visa applicant. She claims the visa applicant’s father passed away and her mother had been reported missing since 2001 and since that time the child has been looked after by a friend and a neighbour. The review applicant provided a death certificate for the visa applicant’s father and a statement from Somaliland police confirming the mother has been missing since April 2011 when her husband made the report. The review applicant also presented a statement from a local doctor confirming the death of the visa applicant’s mother and the mother being missing. The review applicant explained the circumstances of the documents specifying the visa applicant’s address and the school documents specifying the address. In relation to the inquiries conducted at the visa applicant’ school, the review applicant notes that Amina Dahir Mohammed was correctly identified as a guardian in the school documents.

12. In oral evidence to the Tribunal the review applicant said that after her brother’s death she has been supporting the visa applicant and wants her to be in Australia. The review applicant referred to the father’s death. The review applicant said that the child’s mother has been missing since 2001. She said that they have not heard about the circumstances of the mother and had made inquiries with the police but had not heard anything in response. The review applicant presented to the Tribunal a copy of the police report dated March 2017 showing that the mother has been reported missing since 2001.

13. The delegate’s concern was that according to school records, the child was registered by the parent and that contact was made with the mother. The review applicant explains that this relates to the guardian and not to the mother. The review applicant provided to the Tribunal evidence that the child lives with Ms Mohammad and an affidavit from the guardian that she is responsible for the visa applicant’s daily needs. She also presented evidence of earlier school enrolment showing that the child was enrolled by the father and not by the mother. With respect to the differences in the residential address, the review applicant explains that the visa applicant and the guardian moved but continued to live in the same area and the two areas are nearby.

14. At the Tribunal’s request, the visa applicant and the guardian Amina Mohamed had completed DNA testing to confirm there is no relationship between them and the Tribunal is satisfied Ms Mohamed is not the mother of the child.

15. Having regard to the totality of the presented evidence, the Tribunal accepts, on balance, that the child has been cared for by Ms Mohamed. The Tribunal accepts that Ms Mohamed has daily care and control of the child and that the reference to ‘parent’ on the school reports is a reference to Ms Mohamed. The Tribunal is satisfied that Ms Mohamed is not biologically related to the visa applicant and is not the child’s mother. The Tribunal found the review applicant to be a truthful witness and accepts her evidence, as well as the police report indicating that the child’s mother had gone missing and that the mother’s whereabouts are unknown.

16. The Tribunal is satisfied that the visa applicant’s father has passed away. Evidence relating to his death has been provided with the applicant and to the Tribunal. The Tribunal is satisfied the whereabouts of the child’s mother are unknown. The Tribunal is satisfied that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The applicant meets r. 1.14(b).

17. The visa applicant was born in November 1999 and is under the age of 18. There is nothing to indicate that she has a spouse or de facto partner. She is a niece, and a relative, of the sponsor. The visa applicant meets r. 1.14(a).

18. There is evidence before the Tribunal that the review applicant has been providing financial support to the visa applicant for a number of years. She participates in decisions relating to the child’s schooling and has expressed a desire to care for the child. There is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant. The applicant meets r. 1.14(c) and the definition of ‘orphan relative’ in r. 1.14. The Tribunal finds that the visa applicant meets cl. 117.211 and cl. 117.221.

    Conclusion

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

    DECISION

20. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the 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.

    Kira Raif
    Senior Member