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

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.
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).
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
The issue in the present case is whether the visa applicant is the orphan relative of the sponsor.
BACKGROUND ON THE EVIDENCE
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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mahamud (Migration)

Details

AGLC: Mahamud (Migration) [2020] AATA 2195
Case: [2020] AATA 2195
Decision Date: 28 January 2020

CaseChat Overview and Summary

This matter concerned an appeal by the visa applicant, Mr Mahamed Abdirahman Abdullahi, against the decision to refuse him a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The sponsor was the applicant's aunt, an Australian citizen. The core of the dispute was whether the applicant met the definition of an "orphan relative" as defined by the Migration Regulations 1994. The decision was made by Member Helena Claringbold.

The legal issues before the court were whether the visa applicant satisfied the criteria for a Subclass 117 visa, specifically whether he was an "orphan relative" of an Australian relative at the time of application and at the time of decision. This required determining if the applicant was under 18, not in a relationship, a relative of the Australian sponsor, and if both his parents were deceased, permanently incapacitated, or of unknown whereabouts. The court also considered whether there was any compelling reason to believe that granting the visa would not be in the applicant's best interests.

The court's reasoning focused on the definition of "orphan relative" under regulation 1.14 of the Migration Regulations 1994. While the applicant was under 18 and his father was deceased, his mother's whereabouts were stated as unknown. However, the court found that the evidence provided regarding the mother's unknown whereabouts was vague and inconsistent, and there was insufficient documentary evidence to substantiate this claim. The court also noted that the applicant had siblings residing in Ethiopia, and the evidence did not clearly establish that these siblings, or other family members, were unable to care for the applicant. Consequently, the court concluded that the applicant had not satisfied the criterion that he could not be cared for by either parent because their whereabouts were unknown, nor had he demonstrated that there were no compelling reasons against granting the visa in his best interests.

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

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the visa applicant is the orphan relative of the sponsor.BACKGROUND ON THE EVIDENCE 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. 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. 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? 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. ‘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. 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 The issue in the present case is whether the visa applicant is the orphan relative of the sponsor.BACKGROUND ON THE EVIDENCE 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. 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. 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? 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. ‘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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Helena ClaringboldMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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