Hassen (Migration)

[2021] AATA 971

Hassen (Migration) [2021] AATA 971 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Shemshedin Mohammed Hassen

VISA APPLICANTS:  Master Saladin Abdurahman Mohammed
Miss Asina Abdurahman Mohammed
Mr Roba Abdurahman Mohammed

CASE NUMBER:  1901676

DIBP REFERENCE(S):  OSF2017024050

MEMBER:M. Edgoose

DATE:2 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2021 at 2:41pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Federal Court remittal – orphan relatives of the sponsor – guardianship order based on witness testimony – no death certificate or burial records provided – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

EC v MIMIA [2004] FCA 978 

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 27 November 2018 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 16 January 2017. 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 first named visa applicant (the applicant) did not meet cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.

5. The review applicant appeared before the Tribunal on 2 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Meluka Aden the wife of the review applicant., Roba one of the visa applicant’s, Zakriya Abrhime, a neighbour and  a court witness, Adnan Abduraman a neighbour and  a court witness, Nasr Mustufa a neighbour and  wife of Adnan, Abdala Ahamad Abdula a neighbour and  a court witness  and Amatula Abduraman a neighbour and had provided some care for the visa applicant’s. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

7. 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?

8. 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.

9. ‘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, Mr Shemshedin Mohammed Hassen, is the relevant Australian relative.

10. 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.

11. The review applicant claimed at hearing that his brother, the visa applicant’s father, is dead. According to information on the Tribunal file the visa applicant’s father apparently died on 5 August 2013. As mentioned in the delegates decision the Diredawa Administration First Instance Court issued a guardianship order on 10 December 2016 “based on witness testimony rather than official government records”, that being a death certificate and burial records. The delegate further noted in their decision that “death certificates and burial records are easily obtained and are issued at time of death and burial in Ethopia”.  The Tribunal notes that on 2 May 2018 the Department wrote to the review applicant requesting that he provide a copy of the relevant documents. A response was received on 12 June 2018 however the documents that were requested were not submitted. The review applicant stated in his response that “the Oromos have been in unrest since 2014”.   

12. At hearing, on 2 March 2021, the Tribunal asked the review applicant if he had obtained a copy of his brother’s death certificate and burial records. The review applicant responded that he did not have any records or certificates regarding the apparent death of his brother. The review applicant informed the Tribunal at hearing that he had provided all of the evidence he has for this matter. The review applicant considered the information that he had provided including the Diredawa Administration First Instance Court issued guardianship order was sufficient evidence for this matter. The Tribunal informed the review applicant at hearing that the Tribunal accepts that the visa applicant’s mother passed away in hospital on 21 December 2013 due to child birth complications. However, given the lack of supporting evidence in the name of a death certificate and burial records of the visa applicant’s father the Tribunal is not satisfied the visa applicants are orphaned. For these reasons the Tribunal gives little weight to the oral evidence provided at hearing by the review applicant and the court order made by the Diredawa Administration First Instance Court.

13. The review applicant informed the Tribunal that his Australian lawyers had spoken with the witnesses under oath and that they are willing to provide evidence at the hearing. The review applicant informed the Tribunal that the people who buried his brother provided testimony at the court hearing in Ethiopia and agreed that the visa applicant’s father had died. The review applicant acknowledged oral testimony provided at the court hearing the was the only evidence provided to the court and that there was no actual physical evidence in the form of a death certificate, photos or burial records.

14. The Tribunal contacted the six listed witnesses during the hearing and took oral evidence from each of them. One of the six witnesses that provide oral evidence was Roba, the oldest of the visa applicants. The Tribunal also took oral evidence from the review applicant’s wife.

15. The Tribunal asked the review applicant’s wife, Meluka, what would she like to say to the Tribunal. She informed the Tribunal that she wished to tell the Tribunal the truth and that the visa applicant’s have lost their father. She further mentioned that the review applicant was threatening to depart Australia and return to Ethiopia to be with the visa applicants and that she would be left alone. The Tribunal notes that she would not be left alone given that she has six adult children living in Australia and including two still living with her at her home. Meluka told the Tribunal that she has various health conditions. The Tribunal accepts that she has various health conditions given the evidence provided. She further added that she and her husband the review applicant have spent a reasonable amount of money applying for this visa and that they are not wealthy people. Her final comment to the Tribunal was that this decision is in the hands of god and that Ethiopia is in chaos. The Tribunal notes that the witness throughout her oral submission became quite emotional. The Tribunal found that the witness provided limited information to the Tribunal relating to his matter and for these reasons places limited weight on her evidence.   

16. During the hearing the Tribunal contacted Roba, the oldest of the three visa applicants in Ethiopia and asked him a range of questions. Roba informed the Tribunal that the couple in Australia are helping us and that we depend on them for our existence. He mentioned that things in Ethiopia are not good and that he felt it was not even safe to talk. The Tribunal asked the visa applicant if he had anything further to add. He informed the Tribunal that his father and mother were buried in our country in Kobo. Although nervous the visa applicant provided limited information to the Tribunal in relation to his parents. For these reasons the Tribunal places limited weight on Roba’s oral evidence at hearing.

17. In relation to the five other witnesses the Tribunal gives limited weight to their evidence given that it would appear to the Tribunal that each of the witnesses had been prepped before the hearing. As stated earlier in this decision the review applicant informed the Tribunal that his Australian lawyers had spoken with each of the witnesses under oath and that they were willing to provided evidence. The concern for the Tribunal is that each of the witnesses provided the same or similar answers to the questions asked of them. They also provided information that had not been asked of them by the Tribunal. The Tribunal accepts that each of the witnesses know the visa applicant’s and the review applicant. Three of the five witnesses provided oral evidence to the Diredawa Administration First Instance Court in relation to the visa applicant’s father. All five witnesses are neighbours of the visa applicant’s and claim to have assisted the children over the years following the apparent death of their parents. The Tribunal has concerns about the overall credibility of the evidence provided by each of the witnesses and for this reason the Tribunal places little weight on their evidence.        

    Has the applicant been adopted by the Australian relative?

18. 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.

19. Given that the Tribunal has given little weight to the Diredawa Administration First Instance Court issued guardianship order dated 10 December 2016 the Tribunal is not satisfied the applicant’s meet the requirements of cl.117.211(b).  Accordingly, cl.117.211(b) is not met, and does not continue to be met at the time of decision.

20. The Tribunal in reaching its decision in this matter has given regard to all information and evidence submitted to the Tribunal and the information contain on the Department files.

21. Given the findings above, cl.117.211 is not met.

22. 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.

23. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. In relation to the primary criteria for the grant of a Subclass 101 Child (Migrant) visa the Tribunal finds that the visa applicant’s do not meet the requirements as they have not claimed to be the child, step-child or adopted child of the review applicant. In relation to a Subclass 102 Adoption (migrant) visa the Tribunal finds that the visa applicant’s do not meet the requirements as they have not claimed to have been adopted by your sponsor. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

24. 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.