Mahamud (Migration)

[2020] AATA 2195

Mahamud (Migration) [2020] AATA 2195 (28 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hodan Mahamud

VISA APPLICANTS:  Mr Mahamed Abdirahman Abdullahi

CASE NUMBER:  1706123

DIBP REFERENCE(S):  OSF2015/074926

MEMBER:Helena Claringbold

DATE:28 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 28 January 2020 at 11:39am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – nephews and nieces living in third country, cared for by family friend/legal guardian – father killed and mother’s whereabouts unknown – little documentary evidence and vague and inconsistent oral evidence – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.211, 117.221

CASES

Axon v Axon (1937) 59 CLR 395

Kim v MIAC [2007] FMCA 798

Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 3 March 2015, Mr Mahamed Abdirahman Abdullahi, the visa applicant, applied for a Child (Migrant) (Class AH) visa. The application was made on the basis of his relationship with his aunt, Mrs Hodan Mahamud, the sponsor and review applicant.

2. On 13 March 2017, a delegate of the Minister for Immigration refused to grant the visa. The delegate was not satisfied that the parents of the visa applicant are either dead, permanently incapacitated or of unknown whereabouts. Therefore, the visa applicant did not meet clauses. 117.211 and 117.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. On 27 March 2017, the sponsor made a combined application for review of the visa refusal for the visa applicant and for his siblings Miss Fadumo Abdirahman Abdullahi, Miss Fartun Abdirahman Abdullahi, Mr Abdi Abdirahman Abdullahi and Mr Najib Abdirahman Abdullahi. She provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision relating to the visa applicant.

4. On 9 December 2019, the sponsor appeared before the Tribunal to give evidence and present arguments. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether the visa applicant is the orphan relative of the sponsor.

   BACKGROUND ON THE EVIDENCE

8. Mr Mahamed Abdirahman Abdullahi, the visa applicant, was born in 1998 in Kismayo, Somalia. He declared the following that: his father, Mr Abdirahman Abdullahi Ali is deceased and his mother, Mrs Ayan Mahamud’s (born in 1975), whereabouts are unknown. He has six siblings, including Mr Liban Abdullahi, who is deceased and Mr Ahmed Abdullahi, who was born in 1990, whose whereabouts are unknown.

9. His remaining four siblings were born in Kismayo, Somalia and currently reside in Ethopia. They are Miss Fadumo Abdirahman Abdullahi, who was born in 2000, Miss Fartun Abdirahman Abdullahi, who was born in 2001, Mr Abdi Abdirahman Abdullahi, who was born in 25 November 2002 and Mr Najib Abdirahman Abdullahi, who was born in 2005. Four separate visa applications for Subclass 117 visas have been made for the visa applicant’s  siblings. On 27 March 2006, the visa applicant and his four siblings applied for a Refugee and Humanitarian (Class XB) visas which were refused.

10. The sponsor was born in 1976 in Mogadishu, Somalia. On 10 June 1998, she entered Australia. On 8 November 2003, she was granted Australian citizenship. She declared the following that:  she has four children. She is the sister of the visa applicant’s mother and the aunt of the visa applicant. Prior to this application, the sponsor successfully sponsored Ms Faduma Said Ahmed and Ms Ikram Ali Mahamed for Subclass 117 visas.

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

11. 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.

12. ‘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, Mrs Hodan Mahamud, who is an Australian citizen, is the relevant Australian relative.

13. 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.

14. The common law presumption of death is a rebuttable legal inference that in certain circumstances, after an absence of seven years, a person may be presumed dead: Axon v Axon (1937) 59 CLR 395. Where a claim has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include: whether other persons were likely to have received contact from the person presumed dead; what inquiries were made; the circumstances in which the person in question was last known to be alive; and any other relevant factors.

    CLAIMS AND FINDINGS

15. The sponsor and the visa applicant claim the following: Mr Abdirahman Abdullahi Ali, the visa applicant’s father is deceased. Mrs Ayan Mahamud, his mother disappeared in 2012 and her whereabouts are unknown.  Since her disappearance, the visa applicant has been in the care of Ms Ayan Dahir and Ms Fathiya Ahmed Mohamed who received financial support from the sponsor.  Collectively, information in support of the visa application is as follows:

16. Information provided in Mr Mahamed Abdirahman Abdullahi’s Department and Tribunal files:

    ·A statement dated December 2014, from Mr Abdullahi who stated the following: he is the eldest child in the family. His siblings have been living in a house in Sabian Boran 2^nd Road, Dire Dawa, Ethiopia. His siblings were dependent on him for financial support for their basic needs for the past 24 months. His siblings do not have any de facto or spousal partners.

    ·In a statement dated 2016, Mr Abdullahi who stated the following: a friend of their mother’s notified them that their mother went missing after catching a boat to travel from Somalia to Libya. The last time he saw his mother was in Bosaso, Somalia. At that time she was stressed and she didn’t return home. Missing people are commonplace in Somalia. They didn’t inform the police because there was nothing they could do to help to locate their mother. He was a child when his mother went missing and there was nothing he could do to find his mother. He is unable to provide any evidence to demonstrate that his mother is missing. As the sponsor was living in Australia at that time there was nothing she could do to find his mother. His mother loved him and his siblings and would not have intentionally left them as they were still young. Ms Ayan Dahir is his legal guardian and responsible for looking after him and his siblings since his mother’s disappearance. The sponsor has been sending money to support him and his siblings to Ms Dahir.

    ·A statutory declaration dated February 2015, from the sponsor who stated the following: her sister Ayan Ali Mahamud has been missing since 2012 and her whereabouts are unknown. Her sister’s husband, Mr Abdirahman Abdullahi Ali is deceased. Currently the children are living without anyone to reasonably care for them and she is supporting them financially and would like them to be closer to her.   

    ·A spreadsheet titled ‘customer statement’ details the amount of money sent from the sponsor to ‘Ayan Ali Dahir’ from January 2012 to June 2014 and to ‘Fathiya Ahmed Mohamed’ from July 2014 to September 2016.

    ·A statement dated October 2014, from Ayan Dahir, who stated the following: she lives at Xaafada Tucarab, Burtinle, Somalia. The visa applicant’s and his siblings have also been living at this address. The visa applicant’s siblings have been dependent on the visa applicant for the past few years and he helped them with food and money and they have relied on him for the past 24 months. They do not have a spouses or partners and usually live with the visa applicant. DF88

    ·A statement dated December 2014, from Fathiya Ahmed Mohamed who stated the following: she has parental responsibility for the visa applicant and his siblings. She has no objection to the visa applicant and his siblings migrating to Australia.

    ·A letter from the sponsor’s migration agent dated 2015, who stated the following: the visa applicant and his siblings are living with a family friend, Fathiya Ahmed Mohamed, who is currently the person with parental responsibility.  As there has been a war in Somalia birth certificates for the visa applicant and his siblings cannot be provided and they are unable to find the death certificate for their father.

    ·A letter from the sponsor’s migration agent dated 2015, who stated the following: the visa applicant and his siblings are orphans. They are unable to provide birth certificates for the visa applicant and his siblings nor a marriage certificate for the visa applicant’s parents nor a death certificate for the visa applicant’s father. According to the sponsor the visa applicant’s father was killed.  Due to civil unrest these documents were never obtained.

    ·A DNA report dated November 2019 provided to the Tribunal. This recorded the following information: testing was undertaken to determine the likelihood of the sponsor being related as the biological aunt of the visa applicant. Based on the statistical analysis there is strong support that the sponsor and visa applicant are related as biological aunt and nephew.

    ·A statutory declaration dated September 2019 provided to the Tribunal, from the sponsor who stated the following: her sister went missing in 2012. As no one was there to help the visa applicant and his siblings, the matter was not reported to the police. She tried to locate her sister without success. The Somalia authorities were not helpful and told her that her sister could have been killed or gone to sea. The visa applicant’s father was killed and he and his siblings were orphans and had no support for food and shelter.  She finds it difficult to send money to someone else to care for the visa applicant and his siblings. The guardian who was looking after the visa applicant and his siblings is ‘not seen anymore’.

17. The Tribunal notes that in the delegate’s decision record, it is stated that in 2006, the visa applicant’s mother lodged an application for a Special Humanitarian Subclass 202 visa application.  In that application the visa applicant’s mother stated that she was a widow.

18. The sponsor told the Tribunal the following: The visa applicant’s father was shot in his home in Kismanyo in 2003 or 2004 and was buried in Kismanyo. When someone dies they are buried by the community and a death certificate is not issued.  She didn’t know why the visa applicant’s father was shot or whether the shooting was reported to the authorities.  She has not investigated whether there were any witnesses to the shooting as she does not know how to go about this. There is no evidence or official document about his death. The visa applicant was young at the time and cannot tell of his experience.

19. The last she heard about the visa applicant’s mother is that around 2014, she took a boat from Bosaso but she didn’t know where she went.  In 2015, the sponsor travelled to Bosaso, to find the visa applicant’s mother. Police told her that the visa applicant’s mother took a boat and travelled outside of Bosaso. The police considered the visa applicant’s mother to be dead. She has not made any attempts to contact any of the humanitarian organisations, including the Red Cross, to look for the visa applicant’s mother because people told her the visa applicant’s mother is dead. She has provided all the evidence she has with the visa application. The visa applicant is taking care of his siblings with difficulty and they are living together in Addis Ababa, Ethiopia.

20. During the Tribunal hearing the sponsor stated that she could provide evidence that the visa applicant’s mother is missing. She then stated that the additional evidence was an airline ticket connected to her travel in 2015 and all other evidence had been provided.

21. The Tribunal telephoned the visa applicant but the telephone was not answered.  It received the message ‘the subscriber’s telephone is switched off’. The sponsor thought that the issue with the telephone not being answered could be the weather and the sponsor’s migration agent thought it was because of the time it was in Ethiopia, at the time of the Tribunal hearing. He also stated the following: it is difficult to obtain a death certificate for the visa applicant’s father due to the different laws in the visa applicant’s country and the sponsor has provided a statement regarding the visa applicant’s mother. The sponsor told the Tribunal to consider the visa applicant’s written statement as his evidence. She stated that the visa applicant cannot provide information about his father’s death as he was young when it took place. However, the visa applicant has asked about his mother’s disappearance but cannot provide any further information about her whereabouts. After considering this information the Tribunal did not make any further attempts to contact the visa applicant, as it appeared futile to do so.

22. The Tribunal considered the common law presumption of death as a relevant consideration.  In the present case the claims are that, the visa applicant’s father was shot in his home in 2003 or 2004 and was buried in Kismanyo.  The period of time that the applicant’s mother is claimed to be missing is approximately six years according to the sponsor or eight years according to the visa applicant.

23. The Tribunal accepts the following: the DNA information provided to the Tribunal demonstrates that there is strong support that the sponsor and visa applicant are related as biological aunt and nephew. In 2006, in an application for a Special Humanitarian Subclass 202 visa, the visa applicant’s mother declared that she was a widow. However, the evidence in support of the father’s death is limited to this declaration and the information given by the sponsor. There appears to have been little done by the sponsor and the family, at the time of the shooting or since, to substantiate the claims of the visa applicant’s father’s shooting. The Tribunal is of the view that if the visa applicant’s father was shot in his home and then buried by the community as the sponsor claims, there would be some record of these circumstances having taken place. However there is no evidence before the Tribunal from any local authority or community member or leader about these claimed events. The evidence provided about his death is vague and is not supported by any independent information.  Other evidence is inconsistent, the sponsor stated that when someone dies they are buried by the community and a death certificate is not issued. This contradicts the sponsor’s migration agent statement that ‘they’ are unable to find the father’s death certificate. On this evidence and because of evidence to the contrary, the Tribunal does not accept that the visa applicant’s father is deceased as is claimed.

24. The information about the visa applicant’s mother’s disappearance and about her whereabouts is also vague.  The statements provided by Ms Ayan Dahir and Ms Fathiya Ahmed Mohamed about the care they provided the visa applicant is not supported by any other independent evidence, such as a statement from the visa applicant’s school or letters from health professionals or community leaders detailing that the applicant was under their care.  In addition, the spreadsheets detailing money transfers have not been provided with any identification of the person issuing them.  Nor has any evidence been provided by any independent body about the money being received by the claimed recipients. Even accepting that there has been civil unrest in Somalia and the age of the visa applicant, the Tribunal has not been provided any independent information to support the claims made about the visa applicant’s mother.

25. It is perplexing in circumstances when the visa applicant’s mother went missing, the family didn’t contact the police and seek assistance about her whereabouts or how it was determined that the police could do nothing to locate her. The sponsor’s claims that police advice to her was that, the visa applicant’s mother took a boat and they considered her to be dead are unsubstantiated.  The sponsor’s evidence that she didn’t approach any of the humanitarian organisations about her sister because people told her that her sister was dead is puzzling. The sponsor also gave inconsistent information about her sister’s disappearance.  In her statutory declarations of 2015 and 2019 she stated that her sister went missing in 2012.  Yet at the Tribunal hearing she stated that her sister went missing in around 2014.  About six or eight years have passed since the claimed disappearance of the visa applicant’s mother.  More than four years have passed since the visa application was lodged and almost three years since the visa was refused.

26. The Tribunal finds it reasonable to expect that some independent evidence either from local police and/or community leaders about the visa applicant’s mother’s disappearance could be provided.  It also considers it reasonable that information from humanitarian organisations about attempts to find the visa applicant’s mother could also be provided. The Tribunal is not satisfied that there have been any genuine attempts made to locate the visa applicant’s mother or to provide substantive information of her whereabouts.  The Tribunal is not satisfied that the visa applicant’s mother can be presumed dead or that her whereabouts are unknown.

27. Ultimately, because of the lack of evidence to the contrary, the Tribunal is left unsatisfied by the evidence that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

28. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and as a whole.

29. Accordingly, r.1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

1. For the reasons above, 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.

2. 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

3. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

   Helena Claringbold
   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.