Mohamed (Migration)

[2019] AATA 4165

Mohamed (Migration) [2019] AATA 4165 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Zakarie Hassan Mohamed

VISA APPLICANT:  Miss Rahma Hassan Mohamed

CASE NUMBER:  1708480

DIBP REFERENCE(S):  2015/074807, OSF2015/074807

MEMBER:Scott Clarey

DATE:6 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 06 September 2019 at 3:11pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative’ of an Australian relative – full biological sister  – DNA evidence – no parental care – bogus documents submitted – procured in good faith – difficulties inherent in acquiring official documentation in Somalia – attempts to locate parents – notarised declaration – tracing request – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cls 117.211, 117.221

CASES
Nguyen v MIMA (1998) 158 ALR 639

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 23 February 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 14 January 2015. 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa because the applicant did not meet cl.117.211(a) of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant’s parents are deceased.

4. The review applicant appeared before the Tribunal on 5 July 2019 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The Tribunal notes that it found Mr Mohamed to be a sincere, candid and, ultimately, credible witness. His oral evidence was highly consistent with previous submissions and accounts. His answers did not appear rehearsed, but rather, spontaneous and natural.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has before it the Department’s file relating to the visa applicant; its own file; and a copy of the Department’s decision provided by the review applicant to the Tribunal.

7. The issue in the present case is whether the visa applicant (Miss Rahma Hassan Mohamed, herein Rahma) is an orphan relative of the sponsor (Mr Zakarie Hassan Mohamed, herein Mr Mohamed).

   Relevant background

8. Mr Mohamed stated that he was born in Mogadishu, Somalia in 1985. He stated that he had three other siblings, Abdullahi, Faisa and Mohamed. He described his early childhood as a ‘happy’ one; his father was a teacher and his mother was a full-time parent. He said that although the war had been going for some time, it did not reach his area until 1997, and when it did it had a devastating impact on his family’s life. In February 1997 violence erupted in his village while he was at school. When he returned home from school, Mr Mohamed claimed that he found the family home empty as his parents had fled. He stated that he later learned that two of his siblings, Faisa and Mohamed, were both killed. He claimed he was helped by his neighbours at this time, and eventually found his way to a town about 100km from Mogadishu, where he stayed with a friend of his father. Civil unrest was spreading rapidly, and although Mr Mohamed claimed he tried to look for his parents throughout this time, he could not find them. After some time the family he was staying with told Mr Mohamed that they could not protect him any longer. Mr Mohamed stated that in 2002 he went to live in Cairo, Egypt with an auntie and her children who were living there. From September 2002 until 2009 Mr Mohamed lived in Egypt with his auntie’s family. In May 2009 Mr Mohamed arrived in Australia on a humanitarian visa.

9. After arriving in Australia Mr Mohamed made contact with his last remaining brother, Abdullahi, and sent him money. Mr Mohamed claimed that Abdullahi had run away from a terrorist group who were trying to conscript him to fight with them. In 2011 Mr Mohamed tried to sponsor Abdullahi to Australia on a remaining relative visa. This application was ultimately withdrawn by Mr Mohamed when he learnt of Rahma’s existence. Mr Mohamed stated that in 2013 his uncle’s friend, Kazam, who lived in Perth, was returning to Somalia to look for his (Kazam’s) family members. Mr Mohamed asked Kazam to make enquiries on behalf of Mr Mohamed about his parents’ whereabouts. Mr Mohamed stated that he received a call from Kazam in June 2013 informing him that he may have a younger sister. Mr Mohamed said he was surprised but very happy to hear this news.

10. That same month Mr Mohamed first made phone contact with Rahma, who was in a town adjacent to Mogadishu at the time. The parties claim that as Rahma was born (in December 1997) after Mr Mohamed had become separated from his family due to the war, this explained why Mr Mohamed was hitherto unaware of her existence. Rahma stated that she had gone to live with her paternal grandfather in 1999 at a very young age as her mother was ill and could not care for her. Rahma claimed that a named local ‘warlord’, who was also a member of a terrorist group, wanted to marry her but her grandfather would not allow it. In December 2012, her grandfather was subsequently shot and killed for refusing the warlord’s request. Rahma claimed she went on the run from the warlord at this stage, and stayed with distant family members. She said that she knew that she had two brothers as she had been told this by her grandfather, but did not know where they were and had been told at one point that they had fled overseas.

11. Mr Mohamed kept in regular contact with Rahma after their initial conversation in June 2013, and he regularly sent her money for living expenses. The Tribunal notes there are numerous and consistent money transfer receipts on the Tribunal’s file that support these claims. The Tribunal accepts that Mr Mohamed has transferred money to Rahma on multiple occasions at consistent intervals since 2013. Mr Mohamed also stated that he had paid for his sister to undertake educational courses in Malaysia and Bangladesh, and he had also made attempts to help her acquire a student visa for Turkey, although this was ultimately unsuccessful.

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

12. 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.

13. ‘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, Mr Mohamed is the relevant Australian relative. Mr Mohamed became an Australian citizen on 12 December 2013.

14. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.

    Age – r.1.14(a)(i)

15. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. Based on the evidence before it I am satisfied that Rahma was born on 21 December 1997. The Tribunal is satisfied that Rahma had not turned 18 at the time the visa application was lodged (14 January 2015). Accordingly, r.1.14(a)(i) was met at the time of application but does not continue to be met at the time of decision because Rahma has since turned 18.

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

16. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The Tribunal notes that at the hearing, Mr Mohamed gave oral evidence that Rahma was not married or in a de facto relationship. There is no evidence before the Tribunal to suggest that Rahma is (or has been) married or is in a de facto relationship. Accordingly, the Tribunal is satisfied 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)

17. 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.

18. The Tribunal notes that Rahma claims to be the full biological sister of Mr Mohamed. The Tribunal notes that on 15 February 2016, the Department sent Rahma a ‘DNA offer letter’ inviting her to undertake a DNA test to confirm her sibling relationship with her claimed brother, Mr Mohamed. The Tribunal has had regard to a report (dated 11 May 2016) from EasyDNA (a DNA diagnostic laboratory in the USA) which analysed DNA samples provided by Mr Mohamed and Rahma. The Tribunal notes that the report concluded ‘DNA testing was done to determine siblingship of the alleged siblings. Based on testing results obtained from analyses of the DNA loci listed, the probability of full-siblingship is 99.9999997%.’ The Tribunal accepts these conclusive scientific results and gives great weight to this evidence.

19. On the basis of the evidence before the Tribunal, particularly the DNA evidence, the Tribunal is satisfied that Rahma is the full biological sibling (sister) of Mr Mohamed. 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)

20. 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.

    Issue relating to counterfeit documents

21. The Tribunal notes the delegate’s concerns regarding what proved to be false documents submitted by the review applicant purporting to be from the Somali Red Crescent Society (SRCS) confirming that his parents were deceased. The Tribunal has reviewed all correspondence and submissions relating to these documents, including the Department’s letter (dated 1 September 2016) inviting Rahma to comment on the adverse information relating to the authenticity of the documents, the response (dated 5 September 2016), and a submission from Mr Mohamed’s representative (dated 28 June 2019). The Tribunal notes that it questioned Mr Mohamed in depth about this issue at the hearing. In both written and oral submissions, Mr Mohamed explained that his brother, Abdullahi, procured these documents in good faith from somebody purporting to represent the SRCS. Mr Mohamed claimed that neither he nor Abdullahi realised the letters to be counterfeit, and he submitted them in good faith believing them to be genuine. He explained the difficulties inherent in acquiring official documentation in Somalia, given the political situation and the general dysfunction of the government and public services, in addition to the passage of time since he claimed he last saw his parents alive. I note that Mr Mohamed’s explanation of this issue has been entirely consistent over time, including under direct questioning from the Tribunal. Considering all of the evidence cumulatively, the Tribunal is prepared to give the parties the benefit of any doubt regarding this explanation for why counterfeit documents were submitted to the Department. The Tribunal accepts that the parties were unaware that the documents were not genuine when they acquired and submitted them.

    Issue relating to family timeline

22. The Tribunal questioned Mr Mohamed in some depth about issues relating to his family history and the timeline of when he became aware of Rahma’s existence. In particular the Tribunal asked Mr Mohamed how he could have been unaware that he had a sister throughout this time. Mr Mohamed explained he had become separated from his family in February 1997 and that his sister was born in December that year, meaning he was therefore unaware of her existence. The Tribunal questioned Mr Mohamed about why his brother, Abdullahi, who was aware of Rahma’s existence, had not told Mr Mohamed this highly pertinent information. Mr Mohamed responded that he had asked his brother the same question and that Abdullahi had told him that he thought Rahma had been killed and he did not want to add to Mr Mohamed’s pain and guilt by making him aware of her existence.

23. When questioned about what attempts he had made to locate his parents and/or find out what had become of them, Mr Mohamed stated that he had looked for them in some way or another ever since he had become separated from them in 1997. He said it was a very difficult task given the political situation in Somalia, and the lack of formal mechanisms to locate people. He said that he was introduced to a friend of his parents in 2016 and the friend told him that the last time she had heard from them was in 2003 in Somalia. The friend had made subsequent enquiries about the parents and was told that Mr Mohamed’s mother had passed away in 2008 during childbirth and his father had died in 2010. The Tribunal has had regard to a statement, notarised by the ‘Somali Federal Republic Yakshid District Court’, made by two named witnesses declaring that Mr Mohamed’s mother died in 2008 and Mr Mohamed’s father died in 2010. The Tribunal has also had regard to a tracing request (dated 14 March 2017) lodged by Rahma with the Kenya Red Cross in relation to her parents’ whereabouts. The Tribunal notes that in a submission from the parties’ legal representative dated 28 June 2019, no response to the tracing request had been received.

24. The Tribunal notes the evidence before it that Mr Mohamed is the person providing financial and emotional support to Rahma. For example, the Tribunal notes Rahma’s statement of 21 December 2014 which is on the Department’s file. The Tribunal also notes the numerous and frequent money transfer receipts on the Tribunal’s file that support Mr Mohamed’s claims that he regularly provides financial support to Rahma. The Tribunal notes that Mr Mohamed gave detailed and highly consistent oral evidence at the hearing about the general timeline of events and the financial support he provides to Rahma. The Tribunal notes that there is documentary evidence (in the form of multiple and frequent money transfer receipts) corroborating Mr Mohamed’s claims that he provides financial support to Rahma. Mr Mohamed submitted copies of records to the Tribunal which evidence him as having sent many money transfers to Rahma at various dates in 2014, 2015, 2016, 2017, 2018 and 2019.

25. Although the Tribunal acknowledges that the parties’ narrative could appear implausible and/or far-fetched on paper, having had the benefit of hearing Mr Mohamed’s highly consistent oral evidence, and having found him to be a sincere and credible witness, the Tribunal is prepared to give the parties the benefit of any doubt regarding the credibility of their narrative. The Tribunal also acknowledges the inherent difficulty of obtaining official documentation in Somalia, including for reasons relating to the highly volatile political climate throughout the period in question.

26. Having had regard to all evidence cumulatively, the Tribunal finds that Rahma cannot be cared for by either of her parents as both her parents – Mr Hassan Mohamed Arif and Mrs Lul Abdi Magan – are dead or of unknown whereabouts.

27. In view of the evidence before it, the Tribunal finds that r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests of the applicant – r.1.14(c)

28. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

29. The evidence before the Tribunal is that Rahma is presently living in Uganda. Mr Mohamed told the Tribunal that he sends his sister money whenever possible to support her. Mr Mohamed is highly concerned about his sister’s safety in Uganda.

30. There is nothing before the Tribunal to suggest that the grant of a visa would not be in Rahma’s best interests. Indeed, to the contrary, on 27 June 2019, Mr Mohamed submitted a statement outlining his concerns relating to Rahma’s precarious living situation in Uganda, and the impact this situation was having on both his and his sister’s physical and mental health.

31. The Tribunal is satisfied that there is no compelling reason to believe that the grant of the visa is not in Rahma’s best interests. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

    Conclusion

32. Given the findings above, cl.117.211 is met.

33. The Tribunal finds that, at the time of this decision, Rahma does not continue to satisfy the criterion in cl.117.211, but only because she has since turned 18. It follows that cl.117.221 is met.

34. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

35. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Scott Clarey
    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.