Mirzayee (Migration)

[2019] AATA 2051

Mirzayee (Migration) [2019] AATA 2051 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Jan Mirzayee

VISA APPLICANT:  Mr Ali HOSSAIN

Mr Abdullah Mirzayee

CASE NUMBER:  1621454

DIBP REFERENCE(S):  OSF2014/029821

MEMBER:Kira Raif

DATE:13 February 2019

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 13 February 2019 at 12:14pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – insufficient evidence to establish deaths of parents – not orphan relative of Australian relative – lack of evidence to prove relationship between visa applicants and sponsor – decision under review affirmed

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 30 November 2016 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 is a national of Afghanistan, born in April 1997. The visa applicant applied for the visa on 18 December 2014. 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 the applicant was an orphan relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 10 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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.

5. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. 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.

7. ‘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.  .

   Are the visa applicants orphan relatives of an Australian relative?

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicants made the application for the Orphan Relative visas on 18 December 2014. They claim to be the biological siblings of the sponsor.

9. The applicants provided with the application handwritten passports but not their identity documents (tazkeras) and the delegate was not satisfied that the first named visa applicant was under the age of 18 at the time the application was made. With respect to the relationship, the delegate noted that the sponsor declared the visa applicants in his own visa application made in 2012, however, there was no further evidence to prove the relationship between the visa applicants and the sponsor. The delegate noted that DNA testing was not offered because the visa applicants did not meet other visa requirements. With respect to the parents, the visa applicants stated that their father Khair Mohammad and the mother Gul Negar were both deceased. The visa applicants did not provide evidence of their deaths and the delegate did not accept the claim.

10. The delegate wrote to the visa applicants inviting them to provide additional evidence. The applicants did not provide such evidence within the specified time and the application was refused. The applicants subsequently wrote to the delegate, noting that there was delay with the receipt of documents and that documents became available a short time after the decision was made.

11. The review applicant provided to the Tribunal evidence of money transfers, evidence of his income and other personal documents. The review applicant provided a declaration in which he states that he cannot provide official death certificates for his parents because it is not safe for him to travel and obtain the official death certificates from the authorities. The review applicant provided copies of the application forms and a number of family photographs with the visa applicants. The review applicant provided evidence of the visa applicants’ employment and a copy of his passport, as well as the visa applicant’s ID card and other personal documents.

12. In oral evidence the review applicant told the Tribunal that his mother passed away at home in 2008 due to high blood pressure. The review applicant said she was getting ‘a little’ treatment for the blood pressure but there are no medical records. The review applicant said he was in Afghanistan when his mother passed away and they conducted a burial ceremony but there is no evidence of such a ceremony. The review applicant said he cannot obtain a death certificate because it is not safe in the area. The Tribunal accepts that it may not be entirely safe but the Tribunal is not satisfied that the review applicant or the visa applicants are unable to obtain death certificates, or other evidence of death, from the local authorities.

13. The review applicant said his father was a car mechanic and was called everywhere to fix cars. One day the Taliban called him to fix their car and after a few days they came and took him away with the review applicant. This happened in February 2011. The review applicant said his father was killed in front of him but there is no official record of the death.

14. The Tribunal found the review applicant’s evidence concerning his parents’ deaths to be vague. The review applicant provided little detail about the circumstances of their deaths. There are no official or probative records of their deaths. The review applicant repeatedly told the Tribunal that it is not safe in Afghanistan but he also said that the two visa applicants live in Kabul. As they are already in Afghanistan, the Tribunal does not accept that it is unsafe to approach authorities to obtain official records. This is particularly so as the review applicant did provide a number of official documents for the visa applicants including their passports and other personal documents. The review applicant also said there is no authority in Afghanistan capable of issuing death records but the Tribunal does not accept that formal death records cannot be issued in Afghanistan, given that the applicants appear to have had no difficulties obtaining other formal records.

15. The applicant’s friend Mr Wahid told the Tribunal that the visa applicants are real brothers of the review applicant. The Tribunal acknowledges that evidence.

16. On 11 February 2019 the review applicant provided to the Tribunal evidence of having been granted guardianship of the visa applicants. The Tribunal does not consider that the grant of guardianship establishes the parents’ deaths. Guardianship may have been granted because the visa applicants’ parents are not available take care of them, because they are dead or incapacitated, or for any other reason such as the parents’ unwillingness to take care of the children. The fact that the review applicant has been given guardianship of the visa applicants does not support, in the Tribunal’s view, the review applicant’s claims that his parents have passed away.

17. Overall, the Tribunal has formed the view that insufficient evidence has been provided to establish the deaths of the visa applicants’ parents. There are no formal records of deaths, no evidence of burial or of any ceremonies associated with deaths and burial. The Tribunal is not satisfied by the review applicant’s claims that records are not available. On the material before it, the Tribunal is not satisfied that the visa applicants’ parents are dead.

18. The Tribunal is not satisfied that the visa applicants cannot be cared for by their parents because each of them is dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied the visa applicants meet r. 1.14(b) and that they are orphan relatives of the sponsor. There is no evidence that the visa applicants were adopted by the Australian relative, for the purpose of cl. 117.211(b). The Tribunal is not satisfied the visa applicants meet cl. 117.211 and cl. 117.221. 

19. There is no suggestion that the visa applicants are children, or adopted children, of the Australian relative. They do not meet the requirements for the grant of the Child and the Adoption visa.

    Conclusion

20. 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

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

    Kira Raif
    Senior Member