Hashi (Migration)

[2018] AATA 2478

Hashi (Migration) [2018] AATA 2478 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Binti Mahamud Hashi

VISA APPLICANT:  Ms Anab Mahamud Hashi

CASE NUMBER:  1602818

DIBP REFERENCE(S):  2013101533

MEMBER:Hugh Sanderson

DATE:8 May 2018

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 08 May 2018 at 3:57pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – Half-sibling of the review applicant – DNA evidence provided – Visa applicant’s parents believed to be dead –  Under 18 at the time of application – Forced marriage – Two children of the marriage – Divorced – Dependent on the review applicant for her basic needs – Decision under review remitted for reconsideration

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

CASES
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 11 January 2016 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 applied for the visa on 18 September 2013. 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 (the Regulations).

3. 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 met the definition of an orphan relative in r.1.14.

   Background

4. The review applicant was born in Somalia and is currently 39 years old. She was granted a Subclass 309 Partner visa and first entered Australia in 1999. She has since separated from her sponsoring partner. She has become an Australian citizen. She has previously sponsored two siblings for the grant of a Subclass 117 (Orphan Relative) visa: Ikran who was born in 1993 and Fosiyo who was born in 1997.

5. The visa applicant claims to be the half-sister of the review applicant. She claims to have been born on 31 December 1996. At the time of the application this would have made her 16 years and nine months old. She claims that she and the review applicant have the same father but that they do not share the same mother.

6. It was claimed that the visa applicant’s father died before 1999 and she had no relationship with him. It was claimed that he had travelled to Ethiopia and all contact with him was lost. It was believed he died of malaria while he was living in a refugee camp in Ethiopia.

7. It was claimed that although her father had fled Somalia to live in Ethiopia, the visa applicant and her mother remained living in Somalia in Mogadishu. In about 2008 when the visa applicant was 12 years old a bomb blast seriously wounded the leg of the visa applicant’s mother who was taken to hospital. At the time her mother was taken to hospital, the visa applicant was placed in the care of other people in another village. Despite attempts to try to locate her mother, she was not able to obtain any information about her and she believed she has died.

8. The visa applicant was married when she was only 14 years old. This was an arranged marriage which she did not agree to. She has two children of that relationship. She separated from her husband and fled Somalia in 2012, leaving her two children with her husband and his mother. They are not included in the application and are not secondary applicants.

9. The visa applicant was interviewed by an officer from the Department. During this interview, the visa applicant said that she was only made aware of her sister (the review applicant) shortly before the application was made in 2013 after she had moved to live in Nairobi. The visa applicant was not able to provide any details of the review applicant’s life in Australia or other family relationships.

10. The delegate who considered the application noted the following issues:

    ·DNA evidence had not been provided (or requested at that time) to establish the relationship between the visa applicant and the review applicant;

    ·The visa applicant was not able to provide details of the review applicant’s life or family which would be expected if they were half-siblings; and

    ·The visa applicant was unable to provide any convincing evidence that her mother had died as claimed.

11. The delegate was not satisfied that the visa applicant’s parents were deceased or their whereabouts were unknown or they were permanently incapacitated. Accordingly, the delegate found that the applicant did not meet the requirements of r.1.14(b) of the definition of an orphan relative. Accordingly the delegate found the applicant did not meet the criteria in cl.117.211 and refused the application.

    Information to the Tribunal

12. The review applicant provided various documents to the Tribunal including the following:

    ·Statements by the review applicant in support of the application;

    ·Statements by Saido Hashi, a half-sister of the review applicant, and the visa applicant, in support of the application; and

    ·Information about forced marriages in Somalia and attacks in Mogadishu in 2008.

13. The review applicant appeared before the Tribunal on 20 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s half-sister, Saido Hashi, and the review applicant’s cousin, Halima Hagal. Attempts were made to contact the visa applicant by telephone, however, no telephone connection was able to be made. 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 who attended the hearing.

14. The review applicant gave evidence as to the circumstances of the death of her father and her initial contact with the visa applicant. She said that she knew nothing about the circumstances of the death of the visa applicant’s mother. She said that she only became aware of the circumstances of the visa applicant in about 2012 and had no direct knowledge of any of the circumstances of the visa applicant’s life before that.

15. The review applicant said the visa applicant does not have any contact with her children because their father’s family does not allow it. She said she believed that the visa applicant would like to bring her children with her to Australia, but because the father’s family will not allow it she does not see how this will happen. She said the visa applicant was fearful of what the family of her children’s father would do because they paid a dowry to her uncle for the marriage. She said the visa applicant does not like talking about the marriage or her children as it makes her cry.

16. Saido Hashi said that she had been aware of the birth of the visa applicant and her father’s relationship with the visa applicant’s mother. She said that she had no other contact with her father after the visa applicant’s birth. She said that she had contact with the visa applicant when she was about two years old when she was living with her uncle and aunt. After that, she had no communication with her again until after she had left her husband.

17. After the hearing DNA testing took place to establish the relationship between the review applicant and the visa applicant. The testing, completed by Genomic Diagnostics, found the statistical likelihood of the review applicant and the visa applicant being related as biological half-siblings compared to unrelated individuals was calculated to be 152 to 1. It was concluded that there was strong support for the proposition that the visa applicant and the review applicant are related as biological half-siblings.

18. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the visa applicant meets the definition of an orphan relative.

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

20. 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.

21. ‘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, the review applicant is the relevant Australian relative. It is claimed they are half-sisters, sharing a common father.

22. For the reasons below, the Tribunal finds the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision apart from meeting the criterion that the visa applicant has turned 18. Therefore the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.

    Age – r.1.14(a)(i)

23. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

24. The visa applicant claims to have been born on 31 December 1996. This would make her 16 years and nine months old at the time the application was made. She is currently 21 years old.

25. Concerns were expressed as to whether the visa applicant stated date of birth was correct and whether she was under the age of 18 at the time of the application.

26. The information provided by the visa applicant to various authorities has been consistent. This includes the information provided to the UNHCR when she registered with them in August 2013 after arriving in a refugee camp in December 2012. It is noted that she was assessed as being an unaccompanied or separated child and a child at risk at that time. The information provided by the parties to the Department has been consistent with the visa applicant having been born on 31 December 1996.

27. When interviewed by a Departmental officer, it was assessed that the visa applicant was ’highly likely’ to be over 18 at the time of the application. At the time of that interview, the applicant had already turned 18. The assessment of the visa applicant’s age was, in part, based on her demeanour and behaviour which would not be considered common behaviour in a Somali girl. It was acknowledged, however, that her ’life experiences … may make her communicate and appear more confident than someone who is of her claimed age’.

28. The Tribunal has taken into account all the information provided by the parties and the documentary evidence from UNHCR. The Tribunal accepts that no birth certificates or other official documentation would have been able to be genuinely obtained to establish the date of birth of the visa applicant. The information provided by the parties is consistent with the visa applicant having been born on the date stated. This includes the fact that the review applicant was not aware of the birth of the visa applicant as she had lost contact with her father by that time. Although not having an opportunity to interview the visa applicant directly, the Tribunal notes the comments made by the Departmental officer who did interview the visa applicant and agrees with the assessment that her life experiences would have made her appear more confident and direct than would be expected of someone who was, at that time, only 18 years old.

29. After considering all the evidence before it, the Tribunal finds that at the time of the application the visa applicant had not turned 18 years of age. Accordingly r.1.14(a)(i) was met at the time of application. The visa applicant has now turned 18 years of age and accordingly does not continue to meet the age criterion at the time of decision. The Tribunal notes the criterion in cl.117.221(b) provides that the visa applicant meets the criteria if she does not continue to satisfy the time of application criteria only because she has turned 18.

    Spouse or de facto partner – r.1.14(a)(ii)

30. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.

31. The visa applicant was married to Nuor Mohammad Abdi when she was still only 13 years old. She described it as a forced marriage. This was about two years after it is claimed her mother died and it appears that the people who were caring for the visa applicant had decided to get the visa applicant married so that she would no longer be their responsibility. She gave birth to two children over the course of her marriage. A daughter was born 10 days before the visa applicant turned 15 years old and a son was born the following year. She claimed to have left the marriage when her son was only 15 days old. She claimed that the marriage had always been difficult and that her husband had divorced her. She has not seen her children since she left the marriage and their children’s father and his family have refused her any contact with them.

32. The review applicant was not aware of the visa applicant’s circumstances at this time and has not been able to give any first-hand information of the visa applicant’s relationship with her husband or their divorce. The visa applicant’s information has been consistent when dealing with various authorities, including the Department. She declared herself as having been divorced to the UNHCR. She gave consistent information to the Departmental officer who interviewed her as to her relationship with her former husband, including the details of her children. She was advised that by saying that she had no relationship with her former husband and children it would make it difficult for her to sponsor them in any future application if she were granted the visa to reside in Australia. She acknowledged this. When discussing with an officer from the Department the issues as to her children and her separation from them she became obviously distressed. This is consistent with the information provided by other members of her family who reported her becoming distressed whenever these issues are raised.

33. The marriage between the visa applicant and her husband appears to have been conducted in the traditional manner. No official registration of the marriage was made. The divorce is reported to have taken place in the traditional manner with the visa applicant’s husband stating the Talakas three times. Although there is no official documentation of the divorce, this again is not surprising given the circumstances in Somalia at the time of the divorce. There is no information which would indicate the visa applicant has any continuing relationship with her former husband or that she has any contact with her children who remain in his control.

34. In all the circumstances, the Tribunal is satisfied that the visa applicant divorced her former husband and has no continuing relationship with him. The Tribunal is satisfied that at the time of the application and at the time of this decision the visa applicant was not and is not married or in a de facto relationship.

35. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

36. 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.

37. It is claimed that the visa applicant is the half-sister of the review applicant. The review applicant is an Australian citizen. The parties only became aware of each other in about 2012. Their shared father had four different wives, all of whom it is claimed are deceased. It is claimed his last wife is the mother of the visa applicant. It was claimed that the parties’ father had with his four wives more than 20 children, many of whom are now deceased.

38. DNA testing has now been carried out with a finding that there is strong support for the proposition that the visa applicant and review applicant are related as biological half-siblings. The statistical likelihood of that relationship compared to unrelated individuals was calculated to be 152 to 1.

39. The Tribunal finds that the visa applicant is the half-sister of the review applicant and is, therefore, her relative.

40. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

41. 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.

42. It is claimed that the visa applicant’s father died in 1999 when he fled Somalia to Ethiopia and was reported to have died from malaria. It is claimed her mother died in 2008 when she was injured in Mogadishu by a bomb blast and was taken to hospital. She has not been heard of since and therefore is assumed to have died.

43. No documentation has been provided to confirm the death of either the visa applicant’s father or mother. This is not unexpected as it would be unlikely that any genuine death certificates or other documentation would be provided at the time of the claimed deaths of her parents and in the circumstances of those deaths. If documents were provided, it is likely that they would be bogus. In a prior application of the review applicant, the Department noted that it would be pointless to request documentation as genuine records would be impossible to obtain.

44. The information provided as to the death of the visa applicant’s father is consistent with the information provided by the review applicant and other family members to the Department as to the death of their father. In a previous application in 2010, when the review applicant was sponsoring other relatives, the Department found the claims made as to the death of their father to be plausible and consistent with events in Somalia. Since the review applicant first made the claim that her father died in 1999, there has been no indication that there has been any contact with her father.

45. The Tribunal finds that the visa applicant’s father died in 1999 and is not, therefore, able to care for the visa applicant.

46. The claim made as to the death of the visa applicant’s mother is that she was injured in a bomb blast in Mogadishu in 2008. The visa applicant, at that time, would have been about 11 years old.

47. There are numerous reports of an increasing amount of violence Somalia, and in particular in Mogadishu, in 2008. Human Rights Watch reported on 8 December 2018 (see of the increasing number of civilian victims caused by small arms, rocket, mortar and artillery attacks. Suicide bombings were also happening. The review applicant has provided a schedule of attacks that occurred in 2008 leading to the death of over 500 people and injury of over 800 people. The Tribunal accepts that the medical facilities of hospitals in Mogadishu are likely to have been overwhelmed by the injuries suffered by civilians and that many civilians would not have received complete or adequate treatment unless that treatment was provided by friends or relatives.

1. The claims of the circumstances of the death of the visa applicant’s mother are consistent with the information as to the situation in Somalia at the time of her claimed death. The circumstances the visa applicant endured after that time are also consistent with the death of her mother. It was claimed that she was left in the home of people who she described as her aunt and uncle. A marriage was arranged for her when she was only 13 years old. She claims not to have had any contact with her mother or anyone who is aware of what happened to her mother after she was taken to the hospital after being injured from a bomb blast.

2. Overall, the Tribunal is satisfied that the claims made by the visa applicant as to her mother are genuine. The Tribunal finds that the visa applicant’s mother was injured in a bomb blast in Mogadishu in 2008. The visa applicant’s mother’s whereabouts are now unknown and it is likely that she died as a result of that bomb blast in 2008. There has been no contact with the visa applicant’s mother for almost 10 years and there is no information as to her whereabouts or circumstances. The Tribunal finds that the visa applicant cannot be cared for by her mother.

3. As the Tribunal finds that the visa applicant cannot be cared for by either parent, both at the time of the application and at the time of this decision, the criterion in r.1.14(b) is met at the time of application and continues to be met at the time of this decision.

   Best interests – r.1.14(c)

4. 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.

5. At the time of the application the visa applicant was under the age of 18. The UNHCR noted that she had special protection and assistance needs as an unaccompanied child at risk. She is currently dependent upon the support from the review applicant to meet her basic needs. She faces increasing difficulties as a single woman. She is separated from her children and has had no contact with them since soon after the birth of her second child in November 2012.

6. There is no information before the Tribunal which would indicate that the grant of the visa would not be in the best interests of the visa applicant. Accordingly, r.1.14(c) is met.

   Conclusion

7. Given the findings above, cl.117.211 is met. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, but only because the visa applicant has turned 18. It follows that cl.117.221 is met.

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

   DECISION

9. 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.

   Hugh Sanderson
   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.