Hassan (Migration)

[2022] AATA 2556

Hassan (Migration) [2022] AATA 2556 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdirizak Ahmed Hassan

VISA APPLICANTS:  Mr Mahamed Bile Ahmed
Mr Abdilahi Bile Ahmed
Ms Nasteho Bile Ahmed

REPRESENTATIVE:  Ms Tania Mykyta (MARN: 1575391)

CASE NUMBER:  1836082

HOME AFFAIRS REFERENCE(S):          2016047283 OSF2016/047283

MEMBER:M. Edgoose

DATE:16 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 16 June 2022 at 1:07pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death certificates – witness statements – no evidence of adoption – visa applicant has turned 18 – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

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 Home Affairs on 16 October 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 2 November 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 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211.

4. 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.

5. The review applicant appeared before the Tribunal on 16 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mahamed Bile Ahmed the primary visa applicant, a Mr Abditajir Ahmed Hassan the brother of the visa applicant’s father. A third witness was listed to appear, a Mr Afdhub Abdi Ali the brother of the visa applicant’s mother, but after four attempts to make contact with him the Tribunal decided that it would not continuing making further attempts and therefore would refer to the written statements by the witness the were email through during the hearing.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

7. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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.

10. ‘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, is uncle the relevant Australian relative.

11. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative 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.

    No parental care – reg 1.14(b)

12. 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.

13. On 8 December 2018 the review applicant submitted to the Tribunal an unsigned statutory declaration to the Tribunal. The Tribunal notes that the statutory declaration submitted was dated 19 October 2016. Given that the statutory declaration was not signed and was submitted approximately 2 years after it has been written with the assistance of an unaccredited translator the Tribunal gives this submission minimal weight.

14. The Tribunal has given regard to the review applicant’s representative statement of facts, issues and contentions that was submitted prior on 10 June 2022. Within this submission the representative made reference to a copy of the above statutory declaration which had actually been submitted to the Department prior to the delegates decision being made. The Tribunal located the said statutory declaration on the Department file, which was both signed and dated, 19 October 2016. The Tribunal has therefore considered the information contained within this statutory by the review applicant. Although the representative has indicated that particular information mentioned with in the statutory declaration is important the Tribunal is of the view that the review applicant has not provided any further evidence to support his claim that he was separated from his family because of the war when he was around 17 years of age, and that he had heard his family had survived and were in Ethiopia where he located them. At hearing the Tribunal asked the review applicant if he had any further documents to support his claim that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.  The review applicant confirmed at hearing that he had no physical evidence regarding the deaths of his brother and his wife other than the two statements that were email through by the representative during the hearing. The Tribunal has considered the two statements later in this decision. However, given the time which has elapsed since the statutory declaration was made to the Department and that no further physical submissions were submitted to the Tribunal prior to the hearing by the review applicant the Tribunal places limited weight on the statutory declaration.

15. According to the delegate’s decision the review applicant stated that “I am not able to get death certificates for the death of my brother or his wife.” The review applicant said to the Tribunal that the two parents passed away in the bush they just get buried and there is no death certificate.

16. During the hearing the Tribunal received via email two statements and a further document from two of the listed witnesses mentioned in paragraph 5. The Tribunal notes that the statement from Mr Afdhub Abdi Ali the brother of the visa applicant’s mother was illegible. A further copy of the illegible document was received post hearing. The updated submission was legible, but it was not signed. Given the discrepancies the Tribunal has placed no weight on the statement from Mr Ali. 

17. Mr Ali also submitted a document that was titled ‘Clearance For Death’ and was dated 7 October 2014. This document is a statement made by Mr Ali on 7 October 2014 at the Somali Regional State Kelafo Municipality Office. Mr Ali states in this document that his sister died on 9 January 2005 and that he was present for her death and grave. The Tribunal places minimal weight on this document given that this statement was made approximately 10 years of the claimed death of Ms Farheyo Abdi Ali. 

18. The Tribunal has considered the statement submitted during the hearing by Mr Abditajir Ahmed Hassan the brother of the visa applicant’s father. The Tribunal notes that this statement was written in the same format as the statement above except for name changes, dates, identiy number and telephone numbers. The clear mistake in this submission from Mr Hassan was at point 5 and 6 where he states that I was present at her death’ and ‘I was present when she was buried’. Given that Mr Hassan’s statement is about the claimed death of his brother the Tribunal please minimal weight on this submission.

19. At hearing Mr Hassan gave oral evidence. He informed the Tribunal that he had nothing further to add other than what he had already said in the above statement referred to in paragraph 18. The Tribunal mentioned to him that his statement was very brief. Mr Hassan replied yes, the statement is very brief and that the visa applicant’s have been living with him for a very long time and that he needs help with them. He further mentioned that the visa applicant’s have no mother or father and that he wants them to have a better life. Other than Mr Hassan’s oral evidence at hearing and the submission of the brief statement as already discussed in paragraph 18 the witness had no further evidence to support his claim that the visa applicant’s parent are dead, permanently incapacitated or of unknown whereabouts. Given this the Tribunal place minimal weight on Mr Hassan’s oral evidence.

20. During the hearing the Tribunal made contact with the primary visa applicant, Mr Mahamed Bile Ahmed. Mr Ahmed informed the Tribunal that what his uncle, the review applicant, has said about his parents is true and that the Tribunal should agree with his uncle’s request. Mr Ahmed further added that he lives with another uncle in Ethiopia and that his is single and not in any form of relationship. His final comments to the Tribunal were that his parents have passed away and that he has nothing left for him in Ethiopia and that he believes he would have a better life in Australia as his uncles in Ethiopia are struggling. The Tribunal has carefully considered the oral evidence provided by Mr Ahmed at hearing. However, given that he was only able to say that what his uncle has said is true about his parents he was not able to provide any further explanation. Given this the Tribunal places little weight on the primary visa applicant’s oral evidence.

21. The Tribunal has carefully considered the review applicant’s oral evidence provided at hearing that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The review applicant’s final comment to the Tribunal was that he wants to take care of the visa applicant’s now given that other family members have care of them back in Ethiopia. However, given that no further evidence has been submitted in the forms of death certificates or other physical evidence the Tribunal is not satisfied that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

22. Accordingly, reg 1.14(b) was not met at the time of application and does not continue to be met at the time of decision. Given the findings above, cl 117.211 is not met.

23. 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.

24. 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

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

    M. Edgoose
    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.