Mohamed (Migration)

[2022] AATA 126

Mohamed (Migration) [2022] AATA 126 (19 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ayantu Tofik Mohamed

VISA APPLICANTS:  Ms Ibsitu Zakariya Ahmed
Mr Yahya Zakariya Ahmed

CASE NUMBER:  1835796

HOME AFFAIRS REFERENCE(S):          2016046763 OSF2016046763

MEMBER:M. Edgoose

DATE:19 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 19 January 2022 at 10:52am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – specified relationship – half-siblings – limited documentary and oral evidence – request for time to provide further documents and DNA not granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(a)(iii), Schedule 2, cls 117.111, 117.211

CASE
EC v MIMIA [2004] FCA 978

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 Home Affairs on 9 October 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 11 April 2016. 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 criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211.

4. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 of Schedule 2 to the Regulations.

5. The review applicant appeared before the Tribunal on 19 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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.

9. ‘Orphan relative’ is defined in reg 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): reg 1.03.  In the present case, Ms Ayantu Tofik Mohamed, is the relevant Australian relative.

10. 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 does not continue to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

11. 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

12. On 13 January 2022 the review applicant submitted to the Tribunal two photographs claiming that these photos included herself and the visa applicants. The review applicant claims that the first photograph was taken when the visa applicants were young children and included their biological mother. The review applicant claims that the second photograph is of the two visa applicants, her sister and herself. The review applicant claims to be the half-sister of the visa applicants depicted in the photographs. The Tribunal notes that this is the only physical evidence the review applicant submitted to the Tribunal prior to the hearing. Given that no other documental evidence has been provided to support the authentication of the review applicant’s claim of being the half-sister of the people within the photographs the Tribunal gives this submission little weight.

13. On 14 January 2022 the review applicant submitted to the Tribunal a translated version of a court document dated 13 July 2013. The Tribunal notes that the original non-English version of this translated court document was not submitted. The translated court document stated that the visa applicants were the applicants in that matter. In summary the visa applicants were asking the court to confirmed that they, the visa applicants, were the first-degree heirs of the deceased. The court mentioned that the deceased had five children and that three of the descendants live abroad and only two are living in Ethiopia. The court found that the visa applicants were the first-degree heirs of the deceased but did not name the review applicant or the other two descendants living abroad in its decision. The Tribunal considers the court document does not provide any information regarding the claimed relationship between the review applicant and the visa applicant’s and for this reason the Tribunal gives the court document little weight.     

14. The delegate found that due to a lack of genuine and reliable evidence the delegate was not satisfied the visa applicants were in fact the half-sibling of the sponsor as claimed. The Tribunal has considered the oral evidence provided by the review applicant at hearing. The review applicant provided limited oral evidence at the hearing.

15. During the hearing the review applicant requested a 20 minute adjournment which the Tribunal granted. Post the adjournment the review applicant said to the Tribunal that she would like further time to present further documents. The Tribunal considered the review applicant’s request for further time to produce further documents and to possibly get a DNA test. However, given the time which has elapsed since the review applicant applied to the Tribunal to have the delegate’s decision reviewed on 7 December 2018 and until the time of this decision the Tribunal considers the review applicant has had a reasonable amount of time to submit and further documentary evidence and obtain a DNA test to support her claims of being the half-sister of the visa applicant’s. For these reasons the Tribunal was not satisfied that further time should be granted.  

16. Based on the limited oral evidence provided at hearing and the lack of physical evidence the Tribunal is not satisfied that the visa applicants are the half-siblings of the review applicant as claimed. Therefore, the Tribunal is not satisfied that the requirements of reg 1.14(a)(iii) is met at time of this decision.

17. Accordingly, reg 1.14(a)(iii) was not met at the time of application and does not continue to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

18. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

19. There is no evidence before the Tribunal that the visa applicant’s have been adopted by the review applicant. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

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

21. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. It follows that cl 117.221 is not met.

22. 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

23. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    M. Edgoose
    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.