Haidari (Migration)
[2024] AATA 100
•17 January 2024
Haidari (Migration) [2024] AATA 100 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Murtaza Hussain Haidari
VISA APPLICANTS: Mr Rohid Haidari
Mr Ahad HaidariREPRESENTATIVE: Mr Rasheed Qasimi (MARN: 1575435)
CASE NUMBER: 2313902
HOME AFFAIRS REFERENCE(S): BCC2021/1737285
MEMBER:Brendan Darcy
DATE:17 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations.
Statement made on 17 January 2024 at 5:10pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – mother’s medical condition – permanently incapacitated – Taliban interim government in Afghanistan – availability of medical reports in Iran for Afghan citizens – best interests of the visa applicant – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211; rr 1.03, 1.14CASES
Hagos v MIAC [2008] FMCA 1178
Nguyen v MIMA (1998) 158 ALR 639
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2023 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 3 September 2021. At that time, 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.
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 Regulations because the definition of Orphan Relative as set out is regulation 1.14 was not met at the time of application.
The review applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Wajihal Khoshiwa, the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The review applicant (or the sponsor), Murta Hussain Haidari, was born on 21 December 1990 in Logar Province in Afghanistan. He migrated to Australia as an irregular maritime arrival in 2012 and was granted a protection visa in the same year. In April 2023, the applicant was conferred Australian citizenship. The sponsor is ethnically Takij and religious a Shia Muslim.
A joint application for Class AH Subclass 117 Orphan Relative visas was lodged on 3 September 2021. At the time of lodgement, the first applicant was aged 15 years and 9 months, while the second applicant was aged 14 years and three months.
Both claimed that their father was Akhtar Ali Haidari (born in approximately 1960) and his mother Abeda (born in 1969). IN the Form 40CH at question 17, the review applicant did not identity whether one or both the applicants’ parents were dead or their whereabouts was unknown or permanently incapacitated. No documentation or information regarding the applicants’ relationship to each other.
On 5 December 2022, the Department sought more information about the the review applicant and the visa applicants, including evidence about the applicants’ parents being deceased, permanently incapacitated or their whereabouts are unknown. It also required them to undertake DNA testing.
On 14 March 2023, the Department received the following:
· A copy of the applicants’ mother’s passport issued by the authorities in Afghanistan set to expire in 2007;
· A referral from Dr Ghazaleh Amjad, (Radiologist – MC No. 135913) for the applicants’ mother dated 15 January 2023 for minor Degenerative Joint Disease (DJD – also known as osteoporosis) in both knees and lumbar;
· A prescription for a range of medications by Dr Farshid Dehkhoda (orthopaedic surgeon and specialist) dated 12 February 2023 for the applicants’ mother;
· A letter from Dr Farshid Dekkhoda (orthopaedic surgeon and specialist) dated 12 February 2023.
As the details about the applicants’ parents were limited, the Department wrote to the applicants for more information on 16 March 2023. On 27 April 2023, the Department received an email from the applicants’ migration agent with a number of attachments which included a copy of the father’s Ministry of National Defence ID Card issued on 18 April 2009 and an accompanying translation into English.
The review applicant also provided a more detailed and specific statement on behalf of the second applicant regarding the disappearance of the applicants’ father in tragic circumstances during Eid festival whilst travelling to Logar town, following a long period of threats and harassment by the Taliban. The second applicant submitted the following:
‘Since then, I have been the guardian and breadwinner for my two younger brothers. My mother was looking after them but in recent years, she has some severe medical conditions which limit her form being active and taking care of my brothers. My mother does not have the physical and mental capacity to take care of my brothers and to feed them. I hope to bring them over to Australia to live with me and to work with me to support themselves.’
‘My father has been missing since I was only four years old and my mother has taken care of me and my brother since his disappearance. In recent years, my mother has been suffering from severe medical conditions and has not been able to take care of us. My brother ,Murtaza Hussain Haidari and his wife have been looking after us and providing us with food and shelter.
‘My brother and I are currently living under my brother’s wife’s supervision and care and my brother has been supporting us financially from Australia. He is also contacting us regularly and supporting us emotionally and psychologically. We are currently living in Iran and life is extremely difficult here because we do not know anyone and we are treated poorly by the Iranian authorities and the Iranian public for being an Afghani refugee.
‘My mother’s medical condition is getting worse and worse and she cannot even walk properly due to the pain in her lower back and knees. She is also mentally unwell as she is stressing a lot about me and my brother. We are providing medical reports about her health status which confirms that she does not have the physical and mental capacity to take care of me and my brother, Rohid Haidari.
‘We would like to request you grant our visas to we can migrate to Australia and live under my older brother’s care and supervision.’
On 26 May 2023 the Department received an email from the applicant’s agent with several documents that included:
- Lumbar and pelvic x-rays dated 25 May 2021;
- Knee x-rays dated 03 February 2023;
- A letter from Dr H. Zohouri (orthopaedic surgeon and specialist) dated ,2 May 2023 stating the following in relation to the applicants’ mother. It relevantly states:
‘This is to certify that according to the performed examinations, Ms Abeda HAIDARI is under treatment due to Degenerative Joint Disorder (DJD) and in case of no recovery, she would need joint replacement surgery. The patient is also under treatment due to high blood pressure, depression and herniated disk and she need’s other’s cares and to be cared by others.’
A delegate acting on behalf of the Minister refused to grant the applicants Orphan Relative visas on 7 August 2023 in two separate refusal decision both dated 7 August 2023. On the same day, the applicants validly and jointly applied for a review application with the decision records attached.
On 10 January 2024, the Tribunal received the following
· A letter from the Rahman Misaq Hospital in Kabul from Dr Moharram Ali Atlas (neurosurgeon), Dr Ezatullah Omerzai (echocardologist) and Dr Rahmanullah Misaq. It is dated 11 December 2023 and indicates the mother of the applicants was diagonised with ischemic heart disease, hypertension (stage 2), chronic kidney disease, spondylotic and degenerative disk disease and major depressive disorder;
· Various laboratory and radiological reports pertaining to the applicant’s mother;
· Prescriptions for the applicant’s mother to treat conditions; and
· A guardianship certificate over the visa applicants issued to the review applicant in September 2023.
As mentioned above the review applicant and the witness attended a scheduled hearing on 16 January 2024. No post hearing submissions were required at the end of the hearing.
Is the visa applicant an orphan relative of an Australian relative?
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)).
‘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. In the present case, Murtaza Hussain Haidari, who claims to be the sibling of the visa applicants, is the relevant Australian relative.
For the reasons below, the visa applicants were orphan relatives of an Australian relative at the time of application and that cl 117.211(a) is met.
Age – reg 1.14(a)(i)
Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. Both the visa applicants had not reached the age of majority at the time of application. Accordingly, reg 1.14(a)(i) was met at the time of application.
Spouse or de facto partner – reg 1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.
There is no suggestion that either of the visa applicants were married or had a de facto partner at the time of application.
Accordingly, reg 1.14(a)(ii) was met at the time of application.
Relative – reg 1.14(a)(iii)
Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.
At the time of application, the review applicant as the sponsor of this visa application for an Orphan Relative was an Australian permanent resident and had claimed to be the visa applicants’ brother. DNA testing results were submitted to the Department indicating the parties were biological siblings.
Accordingly, reg 1.14(a)(iii) was met at the time of application.
No parental care – reg 1.14(b)
Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.
The review applicant has provided a statement to the Department regarding the applicant’s father, Akhtar Ali, being missing since period immediate before the review applicant’s departure from Afghanistan, presumed dead, on the basis of the Taliban abducting him because of his participation with the Afghanistan army. The decision records stated the claims in this application was consistent with the review applicant’s claims during his protection visa application. During the hearing, the review applicant reiterated this claim. He claimed his whereabouts became unknown to the applicants’ family when the father never answered his mobile phone when travelling within Logar province. The family presumed he was killed by the Taliban.
Given the consistency of this claim over many years in at least two visa applications, the Tribunal accepts that the whereabout of the visa applicants’ father are unknown for the purposes of r 1.14(b).
The Tribunal discussed with the review applicant that there was a lack of contemporaneous medical information about the applicants’ mother from 2021. All the information from medical professionals dated from either Jan and February 2023 from Tehran in Iran, or from November 2023 from Kabul. The witness that she and one of the older brothers of the visa applicants had travelled to Iran to gain diagnoses and treatments for the mother.
Significantly the review applicant claimed that the mother of the visa applicants was not just ill but permanent incapacitated at the time of application and had been since 2018. It was only because of the review applicant’s remittances, the assistance of other family members and later the assistance of his wife whom he married in 2019, that the mother was able achieve everyday life activities or meet appointments outside her residence.
The Tribunal heard that there were difficulties in obtaining medical evidence from Afghanistan in 2021 where doctors were not necessarily or well positioned to provide skilled in complex diagnoses, to maintain adequate records or provide specialist referrals. The Tribunal is also mindful that in September 2021 was one month before Kabul fell to the Taliban.
The Tribunal has considered Australia’s Department of Foreign Affairs & Trade (DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) released on 14 January 2022 to contextualise the situation in Afghanistan at the time of application for this visa.
In 2020, the Doha Agreement between the US Government and the Taliban was concluded. Under that agreement, then-President Donald Trump announced that the United States would withdraw all forces from Afghanistan in 2021. His successor, President Joe Biden, began to implement this policy in 2021, with a final withdrawal date of 30 August 2021. The Doha Agreement notably did not include the Afghan Government as a party and the Taliban did not undertake to refrain from attacks on the government or Afghan civilians.
As the withdrawal date approached, the Taliban redoubled its efforts to regain power, with the Afghan National Army providing little resistance. On 15 August 2021, Kabul fell to the Taliban. The Taliban occupied government offices, leading to some migration out of the country (though less than originally feared), despite their promise of an ‘amnesty’ for all Afghans. In early September 2021, the Taliban announced the formation of an ‘interim government’ and declared once again an ‘Islamic Emirate of Afghanistan’.
Since its takeover in August 2021, the Taliban has made promises with regard to inclusivity and women’s rights.
Many sources regard the Taliban as having already broken its promises, and that it is in the process of returning women to the position they were in between 1996 and 2001. While the Taliban has promised an ‘inclusive’ government, none of the almost 90 government appointments made so far includes a single woman. The Taliban has delivered mixed messages about women in the workplace and in education. For example, Amnesty International reports that on 24 August 2021, Taliban spokesperson Zabihullah Mujahid told reporters women should refrain from showing up to work until ‘proper systems’ were put in place. A few days later, another Taliban spokesperson tweeted that women working in the health sector were to report to duty.
DFAT assesses that the situation of women in Afghanistan, with regards to access to employment, education and healthcare services, is precarious; such access that exists may be altered or withdrawn by the Taliban with little warning or reason given.
This country information strongly suggests the applicant’s mother was not well-placed to obtain contemporaneous documentation to assist decision-makers as to whether she was permanently incapacitated at the time of application. This was due to rapidly deteriorating security and humanitarian situations in Afghanistan throughout 2021, especially for women accessing healthcare.
The Tribunal is also aware caution should be exercised before requiring specific documentary evidence to support the applicant’s claims that his or her parent(s) are permanently incapacitated.[1]
[1] In Hagos v MIAC [2008] FMCA 1178, the Tribunal had requested additional medical information as the evidence before it was inconsistent. The Tribunal requested that an examination be undertaken by a panel doctor but there were some difficulties in making arrangements for the examination to take place. After some time, the Tribunal advised that it was no longer prepared to delay finalising the matter. Although the Court accepted that it was possible to make the arrangements, it held at [25] that in the circumstances it was reasonable for the Tribunal to conclude that a report was not likely to be reasonably available in a reasonable time frame and to proceed to make a decision.
In this regard, the Tribunal has cumulatively considered the totality of medical information about the health conditions of the applicants’ mother from 2023 as they reflect generally long held chronic health problems relevant to the time of application. The mother of the visa applicants, it is accepted, has the following diagnosed conditions:
· DRD/osteoporosis in both knees (surgery for replacement knee joints)
· DRD/osteoporosis in lumbar (no real treatment other than improved diet and pain management)
· Herniated disk (treatable, pain management)
· Spondylotic (neck) pain (mild, pain management)
· Ischemic heart disease and hypertension (stage 2) (treatable)
· Chronic kidney disease (no treatment but progression can be slowed)
· Major depressive disorder (treatable).
The Tribunal accepts the DRD diagnosis in the knee joints comes with a prognosis that deterioration will be ongoing if no replacement surgery and that that treatments for other complaints, namely the applicant’s DRD in lumbar and chronic kidney disease, are very limited. These conditions, common sense strongly suggests, were apparent notably earlier than in 2023 and existed at the time of application.
The Tribunal relatedly finds that, at the time of application, surgery and rehabilitative physiotherapy are complicated by the mother’s other conditions and the lack of healthcare access for women in Afghanistan and the precarious migration status of the applicant’s status should she attempt to access treatments and rehabilitation in Iran where Afghanistan citizens are either denied residency in or removed from that country. Even the treating depressive disorders is complicated in Afghanistan due to the severe strains that country’s mental health system has been enduring for a considerable amount of time.
Taken as whole, all these conditions indicated that the applicants’ mother lacked the kind of mobility and mental acumen to care for herself. It follows from this the Tribunal makes a finding that, when cumulatively considering all the health conditions, the applicants’ mother was both mentally and physically incapacitated, in the sense, she was unable to perform basic everyday life activities to adequately care for herself, let alone the visa applicants who were minors at the time, without the intervention of other family members.
During the hearing, the Tribunal discussed with the review applicant whether the applicants’ mother was either permanently or temporarily incapacitated, given her heart disease and depression were treatable and that surgery could restore a degree of mobility. The applicant understandably responded that he did not know how to address this issue other than to indicate the problems with accessing health care in either Iran or Afghanistan for women who are citizens of Taliban controlled Afghanistan.
Ordinarily the Tribunal would make findings about the applicants’ mother has having largely treatable conditions whereby her incapacitation at the time of application would not be assessed as permanent.
However the Tribunal has placed sufficient weight on the then deteriorating security and humanitarian situation in Afghanistan (and Iran) whereby accessible to healthcare is so compromised and so undermined for the reasonably foreseeable future whereby those considerations indicate the applicant’s mother was more just physically and mentally incapacitated at the time of application. For the intents and purposes, the applicants’ mother was denied the kind of surgeries and treatments to the extent that she was permanently incapacitated, for the purposes of cl 117.211 and r 1.14(b).
Accordingly, reg 1.14(b) was met at the time of application.
Best interests – reg 1.14(c)
Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant.
As the review applicant pointed out in the hearing, the security and humanitarian situation in Afghanistan has been deteriorating since the Taliban returned to power in August 2021 and re-established the predominately Pashtu-run Islamic Emirate of Afghanistan – one month after this application for Orphan Relative visa were submitted. In the hearing, the witness explained that having been granted a partner visa, she had only recently arrived in Australia from Kabul in the last four months. The witness described the severe restrictions on women in Kabul and throughout her country of nationality.
The Taliban have imposed a harsh interpretation of Islamic law despite pledges to respect the rights of women and religious and ethnic minority communities. Under Taliban rule, Afghanistan’s economy has floundered. Malnutrition has soared, and hundreds of thousands of jobs have been lost.
Noting that the applicants belong to a religious and ethnic minority as Shia Muslims and as Tajiks, there is a compelling case to the humanitarian situation in Afghanistan would have been notably precarious for the applicants at the time of application. In contrast, Australia was and remains a well-managed and prosperous society. Although they would have experienced challenges in settling in Australia, the visa applicants would have had access to public education and health and resettlement programmes to provide them with suitable opportunities to learn English and gain employment, should these visas have been granted. They would have the support of the review applicant for guidance as well as accommodation, clothing and food. There is nothing to suggest that the sponsoring relative in this matter is not a person of good character.
The Tribunal finds there is no compelling reasons to believe that the grant of these visas would not have been in the best interests of the visa applicants at the time of application.
Accordingly, reg 1.14(c) was met at the time of application.
Given the findings above, cl 117.211 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations.
Brendan Darcy
MemberATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.14Orphan relative
An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:
(a)the applicant:
(i)has not turned 18; and
(ii)does not have a spouse or de facto partner; and
(iii)is a relative of that other person; and
(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and
(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.
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