Fayazi (Migration)

[2021] AATA 4612

Fayazi (Migration) [2021] AATA 4612 (26 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zakir Hussain Fayazi

VISA APPLICANT:  Ms Latifa Fayazi

CASE NUMBER:  1921113

HOME AFFAIRS REFERENCE(S):          2017/018771 OSF2017/018771

MEMBER:Kira Raif

DATE:26 October 2021

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 26 October 2021 at 9:18am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) – sponsor did not declare applicant as sibling on UNHCR form and visa applications – other documents showing relationship – difficulty of DNA testing in home country – inconsistencies in evidence of parents’ deaths – additional evidence provided to tribunal – decision under review remitted

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

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 Home Affairs on 10 June 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 4 July 2017. 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 an orphan relative of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 5 October 2021 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 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 (Cth) (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 reg 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): reg 1.03. 

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

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was sponsored for the visa by her brother and claimed to be an orphan relative of her brother.

8. The delegate was satisfied that the visa applicant was under the age of 18 when the application was made and that she was not married or in a de facto relationship. With respect to the applicant’s relationship with the sponsor, the delegate noted that the sponsor did not declare the visa applicant in his own Humanitarian visa application made in 2012 and also in the 2017 sponsorship of his partner for the Spouse visa. The sponsor explained that his Humanitarian application was completed using the family composition details on his UNHCR resettlement form and when he raised the omission of his sister, he was advised that the form could not be amended. The sponsor pointed out that there are other documents declaring the visa applicant as his sister. The delegate was not satisfied the requisite relationship existed between the visa applicant and the sponsor but did not offer the parties the opportunity to complete the DNA test.

9. The delegate also considered whether the visa applicant could be cared for by parents. The visa applicant stated in her application that both her parents Nadir Ali and Fatima were deceased. She provided with the application a death certificate relating to her father, issued by the relevant authority in Afghanistan in March 2017 which refers to the date of death as 22 June 2009. The delegate noted that the certificate was issued eight years after the claimed death and lacks historical corroboration but noted that the father was consistently claimed to have been deceased in other applications.

10. With respect to her mother, the visa applicant stated that her mother died in 2011 and that no death certificate was obtained at the time and that these are not normally obtained. (The delegate noted that the death certificate for the father had been obtained in support of the visa application, contrary to that explanation). The delegate was not satisfied the visa applicant’s mother was deceased.

11. The review applicant provided additional evidence to the Tribunal. This includes the visa applicant’s ID card, the death records for the visa applicant’s father including his death certificate and inheritance certificate and evidence of money transfers from the review applicant to the visa applicant. The review applicant also presented a medical report concerning his medical condition and the Tribunal accepts the evidence in that document.

12. The review applicant provided a number of documents and other evidence to the Tribunal on the morning of 5 October, a few hours before the hearing commencement. It is unclear to the Tribunal why the review applicant, who was represented by a migration agent in this review, chose to provide the evidence at such late stage and no explanation has been offered by the applicant’s representative for the non-compliance with the Tribunal’s Practice Direction. The applicant is represented by Ms Anna Ryburn.

13. In his declaration the review applicant describes the situation in Afghanistan and his concern for his sister, who had fled to Kabul in August 2021. The review applicant claims that as a result of his concern for the family in Afghanistan, he has been affected psychologically and sought medical help. With respect to his family composition, the review applicant refers to his siblings, stating that one of his brothers went to Indonesia and has been recognised as a refugee and two others have not been heard from for over 10 years.

14. With respect to his relationship with the visa applicant, the review applicant states that the sibling relationship is proven through the tazkera, which shows the name of the visa applicant’s father as Nadir Ali, the same as his own tazkera, which has the same details. The review applicant states that his sister is also mentioned in the father’s death certificate and the inheritance certificate, both issued in 2017. The review applicant states that when he was completing the paperwork in Indonesia, the person helping him was impatient and thought there was ‘little point’ because he would not remain in that country. The review applicant states that he did mention his sister but the person suggested that he could correct the information once he arrived in Australia. When he applied for the visa in 2012, his siblings were recorded as they appeared on the original UNHCR record and he did not dare correct the information as he was worried that his visa would be refused. The review applicant states that the omission of his sister’s name on his wife’s visa application was an administrative error by his representative, which is confirmed by the fact that he had sponsored his sister for a visa at the same time. The review applicant confirmed his willingness to complete a DNA test.

15. The review applicant states that his mother died in early 2011 in Quetta and he explains that his wife, when interviewed, initially mentioned the year 2010 but then 2011 because of the conversion from the Afghan calendar. The applicant notes that although there is no death certificate for his mother, her death is attested to in the father’s death and inheritance certificates dated January 2017. The review applicant described the death of his father in a Taliban ambush. The review applicant states that this occurred in the first month of summer and he was not sure of the exact date but estimated the date when obtaining the death certificate.

16. The review applicant states that death records are not normally issued in Afghanistan. His sister reported their father’s death and obtained the official death certificate in 2017. She was not asked to specify the details and that resulted in the standard reference to ‘natural death’ on the death certificate.

17. The visa applicant also provided a statement in which she refers to the financial and emotional dependence on the sponsor since the death of her father in 2009. The visa applicant states that since that time her mother and siblings went to Pakistan and her mother passed away in 2011. Her brothers moved to other countries and after the sponsor’s marriage, she lived with the family of his wife and she now lives with another family in Kabul where she is fearful of the Taliban.

18. The review applicant provided the same evidence in his oral evidence to the Tribunal. With respect to the relationship between the review applicant and the visa applicant, it is not entirely clear to the Tribunal why the length of the review applicant’s stay in Indonesia would make any difference to how the family composition forms were completed but the Tribunal accepts that there may have been a mistake made when the forms were completed by a third party. The Tribunal also acknowledges the review applicant’s explanation that when he applied for the Humanitarian visa, he followed the information on his UNHCR documents. The Tribunal considers the 2017 omission of the visa applicant from the application made by the sponsor’s partner to be more problematic. The representative submits that the matching book / page numbers and the fact that it has been verified by the authorities is strong evidence of the visa applicant’s relationship with the review applicant. The Tribunal would generally request DNA testing to confirm the relationship as it considers such test to be most reliable evidence of a familial relationship. However, give the present situation in Afghanistan, and the visa applicant’s circumstances, the Tribunal acknowledges that DNA testing may be difficult. The Tribunal is prepared to accept the review applicant’s evidence that his UNHCR forms contained a mistake and that when he sponsored his partner in 2017, the sister’s name was omitted as a result of an error on one of the forms. The Tribunal places weight on the fact that the review applicant did sponsor his sister at about the same time as sponsoring his wife, so the relationship was declared. On balance, and having regard to the tazkeras (as well as the parties’ willingness to undertake the DNA test), the Tribunal is prepared to accept that the visa applicant is the sister and a relative of the sponsor.

19. With respect to his father’s death, the review applicant states that he saw his father’s body when it was brought home. At the time it was not common to apply for a death certificate and he did not think he would need one, so he did not apply for one. When his sister planned to make the application, his sister took their father’s tazkera and took two witnesses (who were the neighbours and knew about the death of the father). The review applicant explains that the two witnesses had to approach the local authorities to confirm that the father passed away before the death certificate was issued in Kabul. The review applicant claims that the authorities had mistakenly referred to the cause of death as decease and they could not get it corrected. The Tribunal acknowledges the information in the primary decision record that the father’s death had been consistently declared in various visa applications. On balance, the Tribunal accepts, as did the delegate, that the visa applicant’s father had passed away.

20. The review applicant told the Tribunal that his mother passed away in a hospital but it was too expensive to get the death certificate and the one they were able to get did not have the correct date of death. The representative submits that considerable weight should be given to the father’s death record as it is based on the evidence of two witnesses and refers to the death of both parents. The Tribunal does not consider that evidence in itself to be probative. The certificate was issued years after the claimed deaths, it was issued for the purpose of the visa application and on the basis of self-reporting information (even if it was self-reported by witnesses). The Tribunal also does not consider the two witnesses in the visa applicant’s local area in Afghanistan would necessarily know about the death of the mother in Pakistan some years later.

21. Following the hearing, the review applicant provided to the Tribunal a death record for Fatimah Mohammadi and a statement confirming the death, issued by a hospital in Quetta. The Tribunal was unable to verify this document through the overseas post, however on 25 October 2021 an officer of the Tribunal contacted the issuing doctor at the hospital, who confirmed that there is a record of death relating to Ms Mohammadi, occurring in 2011.

22. The Tribunal accepts, on balance and having regard to the death records in relation to the visa applicants’ parents, that both are deceased. As such, the Tribunal accepts that the visa applicant cannot be cared for by her parents as each of them is deceased. The visa applicant meets r. 1.14(b). The visa applicant claims to have been born on 6 July 1999 and made the application for the visa on 4 July 2017, before she turned 18. There is nothing before the Tribunal that the visa applicant’s date of birth is incorrectly recorded and the delegate accepted the visa applicant was under the age of 18 when the application was made. The Tribunal also finds that the visa applicant was under the age of 18 the application was made and is over 18 at the time of this decision. There is nothing to suggest that she has a spouse or de facto partner. The Tribunal is satisfied for the reasons set out above, that the visa applicant is a sibling and a relative of the sponsor. She meets r. 1.14(a).

23. The sponsor is willing and seems to be able to provide support to the visa applicant and has done so for a number of years. The Tribunal has no adverse information with respect to the sponsor’s character or his ability to care for the visa applicant. There do not appear to be any compelling reasons to believe the grant of the visa would not be in the best interests of the visa applicant. She meets r. 1.14(c). The Tribunal finds that the visa applicant is an orphan relative of the sponsor and meets cl. 117.211. She does not continue to satisfy the criterion in cl 117.211, but only because she has turned 18It follows that cl 117.221 is met.

    Conclusion

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

    DECISION

25. 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