Farah (Migration)

[2018] AATA 4055

Farah (Migration) [2018] AATA 4055 (31 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kiin Farah

VISA APPLICANTS:  Ms Sadia Abdulahi Mohamed
Ms Naima Abdulahi Mohamed
Mr Liban Mohamed Hussein
Mr Shafie Abdulahi Mohamed

CASE NUMBER:  1613323

DIBP REFERENCE(S):  2014044563

MEMBER:Kira Raif

DATE:31 August 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 31 August 2018 at 2:10pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – applicant’s age at application – no proof of relationship – did not declare relationship of child’s parents – financial support to children – witness declarations – no birth certificates – no death records – absence of record keeping system – decision under review affirmed

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

CASES
EC v MIMIA [2004] FCA 978

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 25 July 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 Somalia born in 1997, 1998 and 2001 respectively. They applied for the visas on 29 September 2014. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives 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 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hamdi Ahmed. 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. 

   Are the visa applicants orphan relatives of an Australian relative?

7. The visa applicants claim to be nieces and a nephew of the sponsor. The sponsor provided a declaration with the application in which she states that the three visa applicants Sadia, Naima and Shafie are the children of her half-sister Qali Hussein Mohammed. The sponsor claims that Liban is the son of her half-brother Mohammad but he was adopted by her sister Qali and her husband when the child was about 2 years old as his mother passed away and his father went missing. In her declaration the review applicant outlined the family circumstances.

8. The review applicant provided to the Tribunal copies of the primary decision records. These indicate that the review applicant did not include her half-siblings in her own visa application. She explained that due to the war and chaos in Somalia, it was difficult to keep track of where everyone was but the Tribunal is mindful that these family members could have been (and were required to be) identified as relatives in the visa application whether or not the applicant was aware of their whereabouts.

9. The applicants presented UNHCR registration papers but the delegate formed the view that UNHCR would be incapable of establishing any familial relationship and, as such, the registration papers could not be evidence of the relationship between the visa applicants and the sponsor. The Tribunal also acknowledges the evidence of financial support provided to the visa applicant but the existence of such support does not establish the prescribed relationship between the review applicant and the visa applicants.

10. The primary decision record indicates that the applicants were invited to undergo DNA testing to prove their relationship with the sponsor. They replied by stating that they received advice from a DNA testing lab that the outcome would be inconclusive as there is insufficient common DNA. In the absence of DNA confirmation of relationship, and noting the fact that the sponsor did not declare half-siblings in her own visa application, and in the absence of other probative evidence of the relationship, the delegate was not satisfied the visa applicants were relatives of the sponsor.

11. In oral evidence the review applicant said three of the children, Sadia, Nama and Shafie are her sister’s children on her mother’s side and that Liban is her brother’s son but grew up with her sister’s family. The review applicant said there is no proof of her relationship with the children. The review applicant said she was willing to do the DNA test to prove the relationship.

12. The review applicant confirmed she did not declare the children’s parents in her own application because she ‘did not think it was compulsory’. The Tribunal is mindful that the question on the form required the visa applicant to list her siblings. It is unclear how the applicant could have thought she was not required to comply with that request and the Tribunal considers the applicant’s explanation unpersuasive. There is no probative documentary evidence to prove the relationship between the review applicant and the visa applicants. The children’s parents were not declared on the review applicant’s own visa application and there is no paper trail to prove the relationship between the review applicant and the visa applicants’ parents. The review applicant said that the relationship can be proven through the fact that she has been supporting the children. The Tribunal accepts that the review applicant is supporting the children financially but that does not prove the familial relationship between them and certainly not the nature of the relationship required to meet the definition of ‘relative’.

13. The Tribunal acknowledges the witness declaration from Dayax Adan Mohamed and Abdirahman Abdi Mohamed which refers to Mohamed Husein Mohamed and Qali Hussein Mohamed as half siblings of the sponsor. However, the Tribunal does not consider the declaration to be sufficient evidence to prove the relationship between the sponsor and the children.

14. On 20 August 2018 the review applicant also provided to the Tribunal an affidavit from Abduhabib Abdullahi Mohamed which refers to the children’s dates of births as January 1997, January 2001 and January 1998. Mr Mohamed fails to explain on what basis that information is given. There is no explanation of his relationship with the family or the extent of his knowledge about the children’s circumstances. It is not explained why he would be familiar with precise dates of births of the visa applicants. The Tribunal finds that document unhelpful and of no probative value and gives it no weight.

15. On the evidence before it, the Tribunal is not satisfied the visa applicants are relatives of the sponsor. The Tribunal has not offered the option of DNA testing to establish the relationship because, for the reasons that follow, the Tribunal has formed the view that the visa applicants do not meet other requirements for visa grant.

16. With respect to the children’s dates of birth, the review applicant states there are no birth certificates but the children’s relatives told her when the children were born. The Tribunal does not consider this to be probative evidence, given that there are no contemporaneous records of births. The review applicant also referred to the UNHCR records but it is unclear how a refugee agency would know anyone’s date or birth with any precision. The Tribunal acknowledges there are various records of the visa applicants’ dates of birth, the Tribunal is not satisfied that these necessarily accurate in the absence of contemporaneous records and in the absence a record keeping system. The Tribunal does not consider that the UNHCR would have any way of determining the children’s ages other than through self-reporting. For the reasons stated above, the Tribunal considers the declarations from third parties to be inadequate. On the evidence before it, the Tribunal is not satisfied the visa applicants were under the age of 18 when the applications were made.

17. The Tribunal also discussed with the review applicant the visa applicants’ orphan status. The review applicant told the Tribunal there are no death records relating to the children’s parents. The review applicant said there is no documentary evidence of the deaths and no burial records. Following the hearing, the review applicant provided to the Tribunal witness declarations confirming the deaths of parents. The review applicant also provided witness declaration sworn before the Galkaio District Court on 25 August 2018. The Tribunal finds these to be of limited probative value. For example, Dayax Adan Mohamed and Abdirahman Abdi Mohamed provide a declaration in which they state that the children’s father went missing / presumed dead from 2011 and his death was confirmed in 2017. The witnesses fail to identify the circumstances of the death, if they are aware of these, and the details of the eyewitnesses who have been able confirm the death. If there are eyewitnesses to the death, it is not explained why they are unable to provide the relevant statements. The witnesses do not state that they had witnessed the death and they do not explain how they are aware of the information that is contained in the affidavit. The Tribunal has the same concerns with the declarations dated 25 August 2018. There is no explanation as to how these witnesses are aware of the claimed death or disappearance. The Tribunal considers these documents unhelpful and of little probative value. The Tribunal gives these declarations no weight.

18. On the limited evidence before it, the Tribunal is not satisfied that the children’s parents are dead, of unknown whereabouts or permanently incapacitated. The Tribunal is not satisfied that the visa applicants cannot be cared for by their parents because each of them is dead, of unknown whereabouts or permanently incapacitated. Overall, the Tribunal is not satisfied that the visa applicants are orphan relatives of the sponsor. The Tribunal is not satisfied they meet r. 1.14. They do not meet cl. 117.211(a).

    Has the applicant been adopted by the Australian relative?

19. 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 in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978. There is no evidence that the visa applicants were adopted by the Australia relative. They do not meet cl. 117.211(b).

20. The Tribunal is not satisfied the visa applicants meet cl. 117.211. They do not continue to meet that provision at the time of this decision for the purpose of cl. 117.221.

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

22. The review applicant referred to the poor situation that the children are in. The Tribunal acknowledges that evidence but cannot recommend the grant of the visa on humanitarian grounds.

    Conclusion

23. 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

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

    Kira Raif
    Senior Member