Haydari (Migration)

[2019] AATA 6544

Haydari (Migration) [2019] AATA 6544 (13 March 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Javaher Haydari

VISA APPLICANTS:  Mustafa Akbari

Gulafshan Akbari
Zarafshan Akbari

CASE NUMBER:  1618824

DIBP REFERENCE(S):  OSF2014/022359, OSF2014/022360,

OSF2014/022361

MEMBER:  P. Wood

DATE OF ORAL DECISION:  13 March 2019

DATE OF WRITTEN STATEMENT:         11 February 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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 11 February 2020 at 4:20pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – paternal aunt – father passed away – mother whereabouts unknown – decision under review remitted

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

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 September 2016 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 8 July 2014. 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 117.221. Clause 117.211(a) requires that, at the time of application, the visa applicant is the orphan relative of an Australian relative. 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.

4. “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. It is claimed that the review applicant is the relevant Australian relative.

5. To be an orphan relative for the purpose of the definition in r.1.14, the person must not have turned 18 years of age (paragraph (a)(i)); must not have a spouse or de facto partner (paragraph (a)(ii)); and must be a ‘relative’ of that other person (paragraph (a)(iii)). Further, it must also be that the person cannot be cared for by either parent because each parent is dead, permanently incapacitated or of unknown whereabouts (paragraph (b)). Finally, there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant (paragraph (c)).

6. The review applicant provided the Tribunal with copies of the three decision records, that is, where each of the visa applicants was the sole applicant. In each case, the delegate was not satisfied that, at the time of application, the visa applicants were orphan relatives (as defined) of the review applicant (cl.117.211(a)) because they were not satisfied that the visa applicants’ parents were dead, permanently incapacitated or of unknown whereabouts (r.1.14(b)). Accordingly, the delegate was not satisfied that any of the visa applicants met cl.117.211 of Schedule 2 to the Regulations.

7. On 10 November 2016, the review applicant applied to the Tribunal for review of the three primary decisions. The review applicant, who is an Australian permanent resident, has been represented in relation to the review by her solicitor and registered migration agent.

8. On 13 March 2019, the review applicant appeared before the Tribunal to give evidence and present arguments.

9. The Tribunal hearing was conducted with the assistance of an interpreter.

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

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CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether, at the time the visa applications were made on 8 July 2014, Mustafa, Gulafshan and Zarafshan met cl.117.211(a) or (b).

2. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.117.221 as well.

3. In assessing these issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s files, as well as the oral evidence given at the hearing.

   Are Mustafa, Gulafshan and Zarafshan each an orphan relative of an Australian relative?

4. For the reasons below, the Tribunal finds that:

   ·at the time of application, Mustafa, Gulafshan and Zarafshan were each an orphan relative of an Australian relative and thus met cl.117.211(a);

   ·at the time of this decision, Mustafa, Gulafshan and Zarafshan are each an orphan relative of an Australian relative and thus continue to satisfy the criterion in cl.177.211. Therefore, they each meet cl.117.221(a); and

   Age – r.1.14(a)(i)

5. Regulation 1.14(a)(i) requires that each visa applicant has not turned 18.

6. In the visa applications lodged by Mustafa, Gulafshan and Zarafshan they gave their dates of birth as being specific dates in the years 2006, 2007 and 2007 respectively (with the youngest two being twins). The respective sponsorship forms gave consistent information as to their ages.

7. The Tribunal accepts that the visa applicants have submitted the best evidence that they can to corroborate their claims as to their respective ages.

8. Accordingly, the Tribunal finds that, at the time of application, all three visa applicants met r.1.14(a)(i). At the time of this decision, all three visa applicants continue to meet r.1.14(a)(i).

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

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

10. There is no evidence or information before the Tribunal to suggest that, at the time of application or at the time of this decision or any time in between these two dates, any of the visa applicants has been married or in a de facto relationship.

11. 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)

12. 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.

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1. As noted earlier, the Tribunal is satisfied that the review applicant is an Australian permanent resident. The issue for determination is whether she is a ‘relative’ of the visa applicants.

2. The visa applicants claim that the review applicant is their paternal aunt. As noted earlier, an aunt is included within the definition of ‘relative’ in r.1.03.

3. The Tribunal has received various documentation, refered to further below, relating to the visa applicants’ circumstances. The consistent evidence before the Tribunal is that the review applicant is the sister of the late Abdullah Akbari, the father of the three visa applicants, who was killed in a motor vehicle accident in Iran in July 2009 (the Tribunal interposes here to observe that the Department has on a previous occasion accepted his death - see file reference 2011004476-8).

4. In view of the consistent and credible evidence and the documentary evidence in support of the claims, the Tribunal is satisfied that the review applicant is the paternal aunt of each of the three visa applicants.

5. 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)

6. 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.

7. Each primary decision states that the respective visa applicant had provided limited documentary evidence to support the claim that their parents—who the Tribunal notes from the visa applications are claimed to be Khatima (mother) and Abdullah (father)—are deceased, incapacitated or missing.

8. In each primary decision, the delegate stated:

   In the absence of both information surrounding the circumstances of their mother’s whereabouts or documentary evidence of father’s death and in cumulative consideration of all information provided to the Department, I cannot be satisfied that applicants’ (sic) parents are either deceased, missing or incapacitated.

9. In her statutory declaration provided to the Tribunal (tf 79-81), the review applicant declared that the visa applicants’ father, Abdullah, died in July 2009 and that the visa applicants’ mother, Khatima, has not had contact with the visa applicants or her family since she left their village many years ago.

10. At the hearing, the Tribunal repeatedly questioned the review applicant concerning the disappearance of Khatima. In her oral evidence, the review applicant explained how she learned of Khatima going missing and confirmed that she understood Khatima to have become involved with the Taliban. The Tribunal has no reason not to accept the review applicant’s evidence, which was at all times consistent. Accordingly, the Tribunal gives some weight to her evidence.

11. The review applicant’s husband, Abdul, also provided the Tribunal with the statutory declaration (tf 75-78) confirming the death of the visa applicants’ father, Abdullah, in July 2009. This statutory declaration sets out how the declarant independently learned of the death of Abdullah and refers the Tribunal to photographic evidence of the tombstone of

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Abdullah and other supporting documentation (set out below). The declarant also sets out his attempts to ascertain the whereabouts of Khatima.

1. The Tribunal has read and have regard to the written submissions provided by the review applicant’s solicitor. The submissions referred to:

   ·     photographic evidence of Abdullah’s gravestone in Iran

   ·     a translated copy of a memorial service notice relating to the death of Abdullah

   ·     a translated copy of a permit to bury Abdullah

   ·     a translated copy of a permit to take the body of Abdullah out of a cold room.

2. Having considered and weighed all the evidence cumulatively, the Tribunal is satisfied that r.1.14(b) was met at the time of application and continues to be met at the time of decision.

   Best interests – r.1.14(c)

3. 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.

4. The evidence before the Tribunal is that, at the time of application and at the time of this decision, the three visa applicants have been living with their paternal grandmother, who is aged and in poor health, in Makah village, Ghazni, Afghanistan.

5. There is nothing in the information or evidence before the Tribunal to suggest that the grant of a visa to each of the visa applicants would not be in their best interests. Indeed, to the contrary, it appears that it would be in their best interests.

6. Accordingly, the Tribunal is satisfied that, in each case, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

   CONCLUSION

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

   DECISION

8. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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.

   P. Wood

   Senior Member

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ATTACHMENT – RELEVANT LAW
Migration Regulations 1994

1.14      Orphan 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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