Mahamud Muse (Migration)

[2018] AATA 5340

Mahamud Muse (Migration) [2018] AATA 5340 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yusuf Mahamud Muse

VISA APPLICANT:  Ms Asha Abdirahman Mohamed

CASE NUMBER:  1710998

DIBP REFERENCE(S):  2014044626 OSF2014/044626

MEMBER:Adrienne Millbank

DATE:11 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 11 December 2018 at 4:24pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – no date of issue for mother’s death certificate – father’s disappearance undocumented – counterfeit documents provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2, cls 117.211, 117.221

CASES
Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 March 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 October 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 visa applicant was born in Mogadishu in December 1997 or 1998. She claims her father disappeared in 2012; that her (and the review applicant’s) mother died of natural causes in 2013; and that since 2013 she has been living with a distant relative in Nairobi, Kenya.

4. The review applicant (the sponsor) was born in Mogadishu, Somalia, in 1988. He arrived in Australia in February 2010 [and] is an Australian citizen. The visa applicant is his step-sister.

5. 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.

6. The Delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the Delegate was not satisfied with the information and evidence provided. The death certificate provided for the applicant’s mother had no date of issue, and for this reason the Delegate placed no weight on it. No documented evidence was provided to support the claim that the applicant’s father was missing and that attempts had been made to find his whereabouts.

7. The review applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Nairobi. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

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

9. In accordance with the requirements of s.359A of the Act, the Tribunal wrote to the review applicant, through his representative, on 26 October 2018, inviting him to comment on or respond, by 9 November 2018, to adverse information, namely, that documents he and the visa applicant provided to the Tribunal had been verified as counterfeit. The letter advised the applicant he could ask for an extension of time in which to provide comments or response on the information, but that such a request had to be received by the Tribunal by 9 November 2018 and state reasons why the extension was required. The applicant was advised that if the Tribunal did not receive comments or response it could make a decision without taking any further action to obtain his views on the information.

10. On 9 November 2018 the Tribunal received a request for an extension of time to respond. The review applicant advised that the visa applicant needed to contact people she had previously spoken to from the Madina Hospital and Somali Red Crescent. The Tribunal granted an extension of time to 14 November 2018, and a response was provided on 30 November 2018.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant was the orphan relative of the review applicant at the time of application, and whether she would continue to satisfy the criterion at the time of decision, apart from having turned 18.

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

13. 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.

14. ‘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, the applicant’s step-brother is the relevant Australian relative.

15. 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 continues not to be met at the time of decision.

    Age – r.1.14(a)(i)

16. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The review and visa applicants provided the visa applicant’s birth date as 31 December 1998. A copy of her student ID card, stating her date of birth as 1998, was provided. However, a copy of the visa applicant’s Republic of Kenya [ID] card, provided by the review applicant’s previous representative, states the visa applicant’s date of birth as 1997. At hearing the visa applicant stated that she provided an incorrect date of birth when she [registered], for the reason that it was a requirement to be 18 years or over to register oneself. The review applicant did not dispute the visa applicant’s claim that she had provided incorrect information to the Kenyan [authorities] in order to register [herself].

17. At hearing when asked her current age, how old she is, the visa applicant stated and repeated that she is 18 years old. The review applicant subsequently stated that this was incorrect; that the visa applicant was in fact born in 1998 and is 20 years old this year; and that the applicant must have been confused by the question.

18. The Tribunal accepts, on the available information and evidence, that the visa applicant was 16 or 17 years old at the time of application. Accordingly r.1.14(a)(i) was met at the time of application and was not met at the time of decision only because she has turned 18 or 19: cl.117.221(b).

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

19. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The visa applicant claimed she does not have a spouse or de facto partner, and there is no information or evidence before the Tribunal to indicate that she has a spouse or de facto partner. Accordingly, the Tribunal finds that 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)

20. 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. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa. The review applicant provided the Tribunal with a copy of his citizenship certificate, certifying that he obtained Australian citizenship by grant on 30 April 2015.

21. A DNA test organised by the Department confirmed that the visa applicant and the review applicant are half-siblings. 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)

22. 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.

23. Regarding the claimed death of the visa applicant’s mother, a second death certificate, dated 17 May 2013, stating that she died on 12 May 2013 due to ‘Natural Causes’, and signed by Professor Mohamed Yusuf Hassan, Director of Madina Hospital, was provided to the Tribunal. When the Tribunal asked the visa applicant when she obtained the first death certificate, the one that was rejected by the Department because it had no date of issue and no signature, she stated that she obtained it in 2013, following the death of her mother. When asked when she obtained the second death certificate, she stated that she obtained it in 2015. Neither she nor the review applicant provided coherent answers to questions why the second certificate had an issue date of 17 May 2013; and why this signed and dated certificate was not provided to the Department, if it was obtained in 2015, prior to the refusal of the visa application in March 2017. The Tribunal found this document unconvincing, and is not satisfied on this evidence that the applicants’ mother died on 17 May 2013 as claimed.

24. The Tribunal accepts that Somalia is a war-torn country where families lost touch with each other. However, inconsistencies in the evidence provided, and the implausible nature of the claims made in this case, as discussed below, led the Tribunal also to not being satisfied that the visa applicant’s father has, as claimed, been missing for over six years, and remains missing.  

25. A document titled ‘Searching for a Lost Person’, on Somali Red Crescent Society letterhead, with a date of issue of 2 July 2013, comprising a statement by the visa applicant that she was searching for a lost person with her father’s name, ‘he last time July 2013 at Mogadishu Hodan District’ (sic), was provided to the Tribunal. As discussed below, however, the parties stated at hearing that the visa applicant’s father went missing in 2012 and the visa applicant did not start looking for him until 2014. The document was unconvincing.

26. On 18 October 2018 the Tribunal forwarded this document, along with the parties’ mother’s second death certificate, to the Department, for verification.

27. Regarding the parties’ further evidence and claims, the visa applicant stated at hearing that her father went missing a year before her mother’s death, and that she started looking for him only after her mother’s death. The review applicant confirmed that contrary to his statement in a statutory declaration signed 15 October 2015 that the visa applicant’s father went missing one week before the death of their mother, he in fact went missing a year before, in 2012. When the Tribunal asked the visa applicant why she didn’t start looking for her father before her mother’s death, when her mother was seriously ill, she stated that she was ‘too busy’. The review applicant subsequently stated that the visa applicant did not start to look for her father until 2014, a year after her mother’s death, and that she did so at this time because she had grown lonely with no parents to care for her. The Tribunal found these claims implausible.

28. The Tribunal drew the review applicant’s attention to printouts of the parties’ WhatsApp Chat messages between 3 August and 9 October 2018, provided to the Tribunal by the review applicant, during which the parties discuss obtaining and sending documents for the review. On 7 September 2018, the visa applicant sent to the review applicant the message ‘I have been koling dad’. The review applicant was unable to provide a coherent explanation of what the visa applicant meant by this message. He stated that he didn’t know what she intended to convey, even though the message was directed to him. The Tribunal found the review applicant vague and evasive when responding to questions about his communications with the visa applicant.

29. The Tribunal advised the review applicant at hearing, pursuant to s.359AA of the Act, that it had information that would lead or could contribute to the decision being affirmed, and that this consisted of file material from his 2009 [visa] application showing claims made regarding his family composition at that time are inconsistent with those made in this application. The Tribunal advised that it also had concerns about inconsistences in claims and evidence provided by the parties for this application. The review applicant was advised that the inconsistencies suggested that the claims and evidence provided by the visa and review applicant was not reliable.  The review applicant was also advised that he could seek an adjournment and consult with his representative, and/or seek extra time to consider his response, when the Tribunal raised concerns or asked questions arising from inconsistencies in the claims and evidence provided by him or the visa applicant. The review applicant did not seek an adjournment.

30. The Tribunal put to the review applicant that his family composition, provided by him during interviews at the time of his [visa application], was ‘Father: deceased 2007. Death certificate sighted’, and ‘Mother: Deceased in Somalia 1991’. The then Delegate described the applicant’s claims as ‘[Consistent]. Was brought to Kenya by his father as a boy after fleeing violence in Somalia in 1991. His mother and some other relatives were killed there’.

31. The review applicant responded that he told his interviewers that his grandmother had died in 1991, not his mother, and they must have misunderstood. He did not provide a coherent response to the question why he did not correct the mistake, apart from suggesting that there was no requirement and the opportunity did not arise. The Tribunal accepts that mistakes might have been made in the review applicant’s applications [and] an offshore visa, but does not accept that he was unable to correct the mistakes.

32. The Tribunal put to the review applicant that he had provided inconsistent information within the current application, including regarding when the visa applicant’s father disappeared, and when his mother disappeared. In two statutory declarations signed on 15 October 2015 and 10 October 2018 the review applicant claimed that his mother disappeared, that she deserted the family, in 1989. However, in the statutory declaration signed in 2018, he lists biological twin sisters born in 1991. The review applicant was unable to provide a coherent answer as to when and why his mother went missing, with twin babies, or why his father was unable to find her. According to the visa applicant her mother lived with her in Mogadishu and there was no-one else in the household until her mother’s death in 2013. No explanation was provided as to the whereabouts of the review applicant’s two youngest siblings, born in 1991, apart from that they were ‘missing’, along with his other three siblings.

33. The review applicant stated in his statutory declaration that he received a telephone call from a ‘distant relative’ in 2012 who told him that his mother was still alive. He stated ‘Sometimes my mother came to Kenya and I spoke to her over the phone. This happened in 2012 and early 2013’. At hearing the review applicant stated however that he talked to his mother only once, when she called him and told him he had a half-sister. He claimed he received no information from his mother regarding his other siblings, and did not hear anything more from or about his family for a year and a half, when he was told that his mother had died. According to the visa applicant at hearing, a neighbour of her and her mother in Modadishu gave her the phone number of the review applicant in Australia, and she contacted him. When the Tribunal put to the review applicant that there were apparent inconsistencies in the claims and evidence regarding his communications with his mother, he stated that his memory is not good.

34. The parties’ representative in a concluding oral submission stated that while the review applicant’s spoken English is OK, his written English is poor; that the review applicant was very [young]; that his memories are from second and third hand accounts; and that legitimate documents are difficult to obtain in African countries.

35. As noted, the Tribunal advised the applicant at hearing that it had concerns regarding the authenticity of documents provided to the Tribunal, namely the second death certificate for the applicants’ mother purportedly issued by the Madina Hospital, and a ‘tracing letter’ purportedly issued for the visa applicant’s father by the Somali Red Crescent Society. The Tribunal advised the review applicant that it would be forwarding the documents to the Department of Home Affairs for verification. 

36. The review applicant submitted that regardless of the provenance of the documents, he needed the company of family in Australia; he felt responsibility, as the visa applicant’s half-brother, for her well-being; and the visa applicant would have a better life with more opportunities in Australia. 

37. The Tribunal forwarded the documents to the Department of Home Affairs on 18 October 2018. On 23 October 2018 the Tribunal received advice from the Department that both of the documents were verified as counterfeit. As noted, the applicant provided a response, on 30 November 2018, to the Tribunal’s s.359A letter of 26 October 2018. The review applicant’s representative provided the following comments: obtaining documents from Somalia is problematic due to the country having no functioning government since 1991; the visa applicant asked a maternal cousin in Somalia to obtain the documents for her and was not aware that they were not genuine; and a nurse at the hospital who was going to check the death certificate was uncontactable because of bombings. The Tribunal has considered these comments, and, while accepting that obtaining documents from Somalia might be difficult, does not accept that the visa applicant and the review applicant believed the documents they provided to the Tribunal were genuine.

38. The Tribunal attaches significant weight to the fact that the parties provided counterfeit documents to the Tribunal, and that the Delegate placed no weight on the first death certificate, provided at the time of application. The Tribunal attaches significant weight also to the fact that the applicants made claims and provided evidence that was confused and contradictory. The applicants did not present as truthful and credible witnesses at hearing, and the evidence as a whole does not support that the visa applicant satisfies the requirements of r.1.14(b).

39. For the above reasons, the Tribunal is not satisfied, on the basis of the claims made and evidence provided, that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

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

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

3. It follows that cl.117.221 is not met as the Tribunal finds that the visa applicant does not satisfy the criterion in cl.117.211 at the time of decision, and this is not only because the visa applicant has turned 18.

4. 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

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

   Adrienne Millbank
   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.