Hussein (Migration)

[2021] AATA 3333

Hussein (Migration) [2021] AATA 3333 (12 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Fahiima Sheikh Hussein

VISA APPLICANT:  Mr Khadar Askar Egal

CASE NUMBER:  1800951

HOME AFFAIRS REFERENCE(S):          OSF2017022657

MEMBER:David Crawshay

DATE:12 August 2021

PLACE OF DECISION:  Melbourne

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 101 (Child) visa:

·cl.101.211 of Schedule 2 to the Regulations; and

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 12 August 2021 at 4:02pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child – DNA testing establishes relationship – age – birth certificate and passport issued years later – prevalence of non-genuine documents – consistent evidence from review applicant and two other children – visa applicant under 18 at time of application, now over 18 – decision under review remitted  

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03(a), Schedule 2, cls 101.211(1), 101.221(1)(b)

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 and Border Protection on 4 December 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 12 June 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.211, which requires among other things for the visa applicant to be the child of the review applicant at the time of application.

4. The delegate refused to grant the visa on the basis that cl.101.211(1)(c) was not met because the delegate was not satisfied that the visa applicant was the child or step-child of the review applicant (the visa applicant and review applicant will hereafter be collectively referred to as “the parties”) and no claims had been made to show that the visa applicant had been adopted by the review applicant.

5. The review applicant appeared before the Tribunal on 4 August 2021 to give evidence and present arguments. The Tribunal also heard from the other two children of the review applicant, Mr Hussein Mahamud Jimale and Ms Hamda Mohamed Hussein. The hearing was conducted as a remote hearing by Microsoft Teams video.

6. The Tribunal was assisted by an interpreter of the Somali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant was the dependent child of the review applicant at the time of application and continues to be her dependent child at the time of this decision.

   Dependent child criteria

9. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a “dependent child”, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

   Child-parent relationship

10. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).

11. On 16 July 2021, the Tribunal received an email from Genomic Diagnostics which attached the results of a DNA test conducted between the review applicant and the visa applicant dated 14 July 2021. The test showed a probability of maternity of above 99.99 per cent.

12. The Tribunal is satisfied that the testing laboratory (Genomic Diagnostics) is accredited by the National Association of Testing Authorities.

13. The Tribunal is satisfied that the visa applicant is the child of the review applicant.

14. Accordingly, cl.101.211(1)(c)(i) is met at the time of application, which is an alternative requirement under cl.101.211(1)(c).

15. The Tribunal convened a hearing to discuss whether the visa applicant was under the age of 18 at the time of application. If he was under 18 at that time, then he would meet r.1.03(a) of the definition of “dependent child”. If he was 18 years of age or over at that time, he would need to satisfy r.1.03(b) of the definition of “dependent child” which would entail him either being found to be dependent financially on the review applicant or incapacitated as per r.1.03(b)(ii) of the definition of “dependent child”.

16. At the time of application in June 2017, the visa applicant was purportedly 15 years old based on being born on 25 December 2001. This claimed date of birth was contained within a “birth certificate” given by the Mayor of Mogadishu on 22 January 2011. This document was given little weight by the delegate as it was issued 10 years after the claimed birth of the visa applicant and also because information contained within it (namely, that the mayor had seen a certificate from the hospital) contradicted evidence given by the review applicant that the visa applicant was not born in a hospital. Regarding this last point, the review applicant told the Tribunal at hearing that this was not contradictory evidence as the visa applicant was issued a birth certificate some eight or nine months after his birth. The Tribunal notes that it has not seen this certificate.

17. The Tribunal heard from the review applicant and from the review applicant’s other two children at hearing about the circumstances leading up to and after the birth of the visa applicant in December 2001. They gave clear and unprompted evidence that was broadly consistent with the claims made about his birth and transfer to a relative three years later. The Tribunal gives this evidence weight.

18. After hearing, the review applicant submitted a copy of the visa applicant’s Somali passport issued in December 2015 which stated that he was born on 25 December 2001. The Tribunal is aware of issues to do with purportedly official Somali documents, including the prevalence of non-genuine documents and the low probative weight attached to them.[1] Given these concerns, it places only limited weight on the passport as evidence of the visa applicant’s age.

    [1] See, e.g., European Commission, “Ad-Hoc Query on biometric passports issued by Somalia” (23 March 2015)

19. The Tribunal has been presented with limited evidence concerning the age of the visa applicant. This is not surprising given the difficulties experienced in Somalia over an extended period, not least of which has been the lack of a functioning government. Furthermore, as detailed above, what documentary evidence it does have causes it concerns. However, given the positive weight the Tribunal accords to the testimony of the review applicant’s other two children at hearing, and in the absence of evidence to the contrary, it accepts that the visa applicant was born in or around December 2001 and was under 18 at the time of application.

20. Because the visa applicant was under 18 at the time of application, he satisfies r.1.03(a) of the definition of “dependent child”.

21. As the visa applicant was under the age of 25 at the time of application, he meets cl.101.211(1)(b).

22. Because the visa applicant meets the cumulative requirements of cl.101.211(a), cl.101.211(1)(b) and cl.101.211(1)(c), he meets cl.101.211 in its entirety.

23. The Tribunal finds that the visa applicant does not continue to satisfy the requirements of cl.101.211 at the time of this decision only because he has turned 18 and therefore meets cl.101.221(1)(b) which is an alternative requirement under cl.101.221(1).

24. As cl.101.221(2) does not apply because the visa applicant was under the age of 18 at the time of application, he therefore satisfies the requirements of cl.101.221 in its entirety.

25. Given the findings above, the appropriate course is to remit the matter to the minister to consider the remaining criteria for the visa.

    DECISION

26. 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 101 (Child) visa:

    ·cl.101.211 of Schedule 2 to the Regulations; and

    ·cl.101.221 of Schedule 2 to the Regulations.

    David Crawshay
    Member

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …

    
    

last accessed on 11 August 2021.