Haidari (Migration)

[2017] AATA 2868

Haidari (Migration) [2017] AATA 2868 (18 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Salam Haidari

VISA APPLICANTS:  Master Mohammad Zia Haidari
Master Ramazan Ali Haidari
Ms Golsoom Haidari

CASE NUMBER:  1706768

DIBP REFERENCE(S):  2016/036788

MEMBER:Wendy Banfield

DATE:18 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2017 at 6:44pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Father’s disappearance and mother’s death – Lack of reliable evidence – Inconsistent information

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.211, 117.221

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

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 22 January 2017 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 applied for the visas on 22 August 2016. 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.

3. 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 and cl.117.221.

4. The delegate refused to grant the visas because the visa applicants (the applicants) did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations because they did not meet the definition of orphan relative in reg. 1.14.

   Background

5. The review applicant claims to be the biological brother of the visa applicants who are living in Kabul, Afghanistan. The review applicant has declared his and the applicant’s mother is deceased and their father is missing, presumed deceased. The visa applicants are said to have lived in Kabul with a cousin since 2014 having moved from their village with their mother after their father’s disappearance because of the Taliban.

6. The review applicant left Afghanistan following the disappearance of his father and came to Australia in 2015 as a refugee. The remaining family moved to Kabul from their village due to the Taliban. The applicant said he was told by a cousin about the death of his mother in mid-2015 who he believes had a heart attack. A death certificate was obtained on 30 August 2017.

7. The Department’s decision record made the following findings:

   ·     The applicant Mohammad Zia made inconsistent claims regarding the process of obtaining his Tazkira;

   ·     The information contained on the Tazkira document is unreliable due to the ease with which information can be changed and the lack of centralised offices;

   ·     The applicants demonstrated limited knowledge of the sponsor;

   ·     The applicants provided conflicting information in relation to the their living arrangements;

   ·     The applicants gave inconsistent verbal information during a telephone interview and Mohammad Zia terminated a phone call when questions were put to him;

   ·     A witness statement was provided to support the claim that the applicants father is missing and their mother is deceased, however, the date provided for the mother’s death was after the date of the statement;

   ·     The applicants claimed the witness who provided a statement about the fate of the parents has been present for both events but later it was declared the witness was merely known to the family;

   ·     No official or reliable record of the applicants’ mother’s death was provided.

8. The review applicant appeared before the Tribunal on 12 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mohammad Taher. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

9. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the visa applicants are orphan relatives of the Australian sponsor.

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

12. 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.

13. ‘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.  In the present case, Mohammad Haidari is the relevant Australian relative.

14. For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are not orphan relatives of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met, and does not continue to be met at the time of decision.

    Relative – r.1.14(a)(iii)

15. 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 r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

16. Pursuant to r.1.03 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). In the present case, the review applicant stated in the ‘Sponsorship for a child to migrate to Australia’ form that the visa applicants are his brothers and sister.

17. The Department had found the evidence of a sibling relationship between the review applicant and the visa applicants to be inadequate but because their concerns were not confined to the issue of ‘relative’, did not request DNA evidence. The Tribunal notes the applicants have said they are willing to provide DNA evidence, however, the Tribunal is not satisfied there is sufficient evidence the visa applicant’s cannot be cared for by either parent and for this reason, has not asked the parties to undertake DNA testing.

    No parental care – r.1.14(b)

18. 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.

19. The Tribunal does not have reliable or independent evidence of the disappearance of the visa applicants’ father. The Department notes a statement was submitted from a witness in this regard which referred to the death of the mother prior to that event having taken place. The representative submitted the statement was incorrectly dated and was in fact made after the passing of the applicants’ mother but even with this explanation, the Tribunal does not find the evidence is to be satisfactory or sufficient.

20. The Tribunal is concerned about the lack of reliable evidence regarding the disappearance of the applicant’s father and death of their mother. Mohammad Zia provided inconsistent information about the date of his mother’s death and there was some initial uncertainty about where this had occurred. A death certificate was provided but was issued on 29 August 2017 rather than at the time of her death or the time of the visa application. The Tribunal is concerned the review applicant told the Tribunal that Mohammad Zia initially gave a different time as the date of his mother’s death because he thought it would speed up the visa process. This casts doubt on the credibility of the witnesses. The Tribunal’s concern is compounded by the evidence of Mohammad Zia that he had been engaged in work when the review applicant claimed he had never worked. The Tribunal does not accept the later claims that the work was for just three days to earn money for a mobile phone. As noted by the Department, Mohammad Zia hung up the phone during an interview when he was presented with inconsistent information by his siblings.

21. The review applicant claims the visa applicants are cared for by a cousin but that the arrangement is strained. He said he has to continually convince his cousin to look after them. The Tribunal notes the cousin with whom the visa applicants are said to live did not give evidence and therefore the Tribunal has not been able to test the review applicant’s claims about the living arrangements and daily lives of the visa applicants.

22. The Tribunal takes into account the representative’s submission that due to their father’s disappearance and the death of their mother, when the review applicant contacts his siblings they do not converse with ease but instead he just makes sure they are alright. However, given the review applicant’s stated concern about the lack of care provided by his cousin, together with the fact that he hopes to bring the applicants to a foreign country, the Tribunal would expect they would have a lot to discuss and would know more about each other’s circumstances

23. For these reasons, the Tribunal does not find the review applicant and the visa applicants to be reliable and cannot be satisfied their mother and father are dead, permanently incapacitated or of unknown whereabouts.

    Has the applicant been adopted by the Australian relative?

24. 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.

25. There is no claim that the visa applicant has been adopted by the Australian relative and this criterion is not relevant.

26. As the Tribunal has found the visa applicant does not meet the definition of an orphan relative in reg. 1.14(a)(iii), the criteria in cl.117.211 is not met.

27. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, and this is not only because the visa applicant has turned 18. It follows that cl.117.221 is not met.

28. For these reasons, 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

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

    Wendy Banfield
    Member

    
    

    ATTACHMENT – 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.