Mohamed (Migration)

[2018] AATA 5236

Mohamed (Migration) [2018] AATA 5236 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Amina Hussein MOHAMED

VISA APPLICANTS:  Ms Aniso Hussein MOHAMED
Ms Hodan Hussein MOHAMED
Mr Ali Hussein MOHAMED
Mr Abdifatah Hussein MOHAMED
Ms Amran Hussein MOHAMED
Ms Khadro Hussein MOHAMED
Ms Maymun Hussein MOHAMED
Mr Abdikan Hussein MOHAMED

CASE NUMBER:  1615421

DIBP REFERENCE(S):  OSF2014/044500; OSF2014/044501; OSF2014/044502; OSF2014/044503; OSF2014/044504; OSF2014/044505; OSF2014/044506; OSF2014/044507

MEMBER:Shane Lucas

DATE:2 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2018 at 10:58am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – not an orphan relative of an Australian relative – counterfeit death certificates for father and step-mother – failure to provide genuine death certificates or burial permits – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 375A
Migration Regulations 1994, Schedule 2, cls 117.211(a), 117.221(a), PIC 4020, rr 1.03, 1.14

CASES
Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 13 and 14 July 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are Somali nationals presently residing in Uganda. The applicants applied for the visas on 10 September 2014 on the basis of their fraternal relationship with the sponsor. 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 (the Regulations). Relevant to this case, the criteria include cl.117.211(a) which requires that an applicant for the visa is the orphan relative of an Australian relative of the applicant at the time of application; and cl.117.221(a) which requires that an applicant for the visa is the orphan relative of an Australian relative of the applicant at the time of decision.

4. The delegate refused to grant the visas as he was not satisfied that the applicants met cl.117.211 - and hence, cl.117.221(a) - of Schedule 2 to the Regulations because death certificates for the applicants’ parents were assessed by the Department of Immigration and Border Protection (DIBP) Visa Integrity Unit as counterfeit, and the applicants provided no other credible evidence to support the applicants’ claims relating to their parents’ alleged death. The delegate made no decision with regard to the application of the Public Interest Criterion 4020 (PIC 4020) as required by cl.117.223 for the grant of the visas. The Tribunal has therefore confined itself to consideration of the question of whether the parents of the applicants are in fact deceased, and hence whether the applicants satisfy r.1.14(b).

5. The review applicant appeared before the Tribunal on 4 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the first-named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

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

7. During the course of the hearing, the Tribunal sought to contact three individuals put forward by the review applicant as witnesses, being a Head Teacher at the primary school in Kampala, Kenya attended by the third-, fourth-, fifth-, sixth-, seventh- and eighth-named visa applicants; the Chairman of the local council zone in Kampala where the visa applicants reside; and a general practitioner for the fourth-, fifth-, sixth-, seventh- and eighth-named visa applicants. Despite several attempts, the Tribunal was unable to contact any of these prospective witnesses by telephone on the numbers provided. The Tribunal invited the review applicant to provide further documentation within 14 days (i.e. by 18 September 2018) regarding the proposed evidence to be given by the above-named persons and/or to make any further comments in support of the application.

8. On 28 August 2018, the Tribunal received letters from the above individuals stating the basis of their respective knowledge of the applicants. The council Chairman’s letter dated 15 August 2018 states that the applicants’ “have no parent to cater for them”; the general practitioner’s letters dated 19 August 2018 state that the applicants live “with no mother or father”; and the Head Teacher’s letter dated 16 August 2018 confirms that the third-, fourth-, fifth-, sixth-, seventh- and eighth-named visa applicants are “bona fide pupils” at the primary school. This documentation was considered in the making of this decision.

9. On 18 September 2018, the Tribunal received a further submission from the applicant’s representative. This submission went to the application of PIC 4020(1), the waiver considerations at PIC 4020(4) and the exemption clauses at PIC 4020(2AA). The Tribunal acknowledges these submissions, but as stated at [4], has confined itself to consideration of the question of whether the parents of the applicants are in fact deceased, and hence whether the applicants satisfy r.1.14(b).

10. On 9 October 2018, the Tribunal received a further written statement dated 8 October 2018 from the aforementioned council Chairman (see [7] stating that he is also a neighbour of the applicants and affirming that they “live alone without any parents”. The letter stated also that the first-named applicant has informed the Chairman of the deaths of her father, mother and step-mother. This documentation was also considered in the making of this decision.

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 applicants are able to satisfy the criteria for the visa which requires that an applicant for the visa is the orphan relative of an Australian relative.

    Are the visa applicants orphan relatives of an Australian relative?

13. As stated above at [3], cl.117.211(a) requires that at the time of application the visa applicants are orphan relatives of an Australian relative. The visa applicants must continue to satisfy that criterion at the time of decision (cl.117.221(a).

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. 

15. In the present case, the review applicant claims to be the sister of the first-, second-, third- and fourth-named visa applicants, and the half-sister of the fifth-, sixth-, seventh- and eight-named visa applicants. The review applicant was an Australian permanent resident at the time of application and provided the Tribunal with a copy of a Certificate of Australian Citizenship indicating that she acquired Australian citizenship on 18 April 2015. On consideration of the evidence provided, the Tribunal accepts that the review applicant is the sister or half-sister of the visa applicants and is the “Australian relative” required by cl.117.211(a), and hence, by cl.117.221(a).

16. For the reasons below, the Tribunal finds that the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the Tribunal finds that the visa applicants are not orphan relatives 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.

    No parental care – r.1.14(b)

17. Regulation 1.14(b) requires that the visa applicants 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.

18. In the visa applications, the applicants claimed that their father (and hence the father of the review applicant) died in Kenya on 11 October 2011 from a heart attack. A death certificate purportedly issued by the Republic of Kenya was provided as evidence of his decease. The applicants claimed also that the mother of the first-, second-, third- and fourth-named visa applicants died on 10 December 2001 in Somalia in the act of giving birth to the fourth-named visa applicant. No death certificate was provided relating to her decease. The applicants claimed also that the mother of the fifth-, sixth-, seventh- and eighth-named visa applicants (and hence, the step-mother of the review applicant and the first-, second-, third- and fourth-named visa applicants) died in Kenya from the effects of “blood pressure” on 2 February 2012. A death certificate purportedly issued by the Republic of Kenya was provided as evidence of her decease. In a Statutory Declaration dated 4 September 2014, the review applicant confirmed the deaths of her mother, father and step-mother, though this statement provided no details of the cause of her father and step-mother’s deaths or the dates of their decease. The applicants made no claims that their parents were permanently incapacitated or of unknown whereabouts.

19. As noted above at [4], the DIBP Visa Integrity Unit assessed the death certificates provided as counterfeit. In making this assessment, the Unit utilised DIBP country information relating to Kenya (the country in which the applicants’ parents allegedly died); Uganda (the country in which the applicants have resided since 2014); and Somalia (the applicants’ country of origin).

20. On 3 August 2015, the Department wrote to the parties and invited comment on the adverse information received. In response, the review applicant stated that the death certificates had been obtained after contacting a friend of her father. The review applicant also provided two letters dated 21 October 2015, being from a gentleman identifying himself as a Consultant General Surgeon at Kenyatta National Hospital in Nairobi, Kenya. In the first letter, the gentleman states that he attended the review applicant’s father in his last illness, and that he died on 21 October 2011 (not 11 October 2011) from the effects of chest pains, syncopy and cardiac arrest. In the second letter, the gentleman states that he attended the review applicant’s step-mother during her last illness and that she died on 2 February 2012 of cardiac arrest.

21. On 5 February 2016, the Department wrote to the applicants’ representative stating that the letters from the Consultant General Surgeon were not acceptable as “proof of death” and requesting genuine death certificates or burial permits relating to the review applicant’s father and step-mother be provided. This request was repeated on 8 February 2016. On 7 March 2016, the applicants’ representative responded, stating:

    “I am instructed that the visa applicants do not have a contact in Kenya and believe that they are unable to get a Death Certificate unless they are present there. I have advised the Sponsor to contact the Kenya High Commission in Canberra, Australia, to see if a Death Certificate can be obtained via their office and will provide an update shortly. I have checked their website and where the Death was registered I understand that it is possible for them to provide a Death Certificate. Where it is possible, would this be acceptable?”

22. The Department responded on 7 March 2016, stating:

    “Please note that it is impossible to conduct a burial in Kenya without a burial permit / death certificate. I also note that the applicants have provided a letter from a doctor claiming to be aware of the cause of death of the parents of the applicants. This therefore means that the deaths were recorded as the letters infer the deaths occurred in a hospital. The onus is therefore on the applicants to provide a genuine death certificate. I am unable to advise if the Kenya High Commission in Canberra can help in getting death certificates.”

23. No further response to these requests was made prior to the delegate’s decisions of 13 and 14 July 2016.

24. On 31 July 2018, the Tribunal wrote to the review applicant and provided a copy of a Certificate regarding disclosure of certain information to the Administrative Appeals Tribunal under s.375A of the Migration Act 1958 held on the applicants’ DIBP files. The certificates stated that it would be contrary to the public interest to disclose the relevant information contained on the file, as it contained the report of the Visa Integrity Unit and the relevant DIBP country information noted above at [19]. The Tribunal’s correspondence provided the review applicant with the opportunity to comment on the validity of the certificate within 14 days (i.e. by 14 August 2018).

25. In response, the applicants’ representative wrote to the Tribunal on 14 August 2018 submitting that the certificates are invalid as they do not comply with the requirements of s.375A(1) to specify a reason why it would be contrary to the public interest to disclose the documentation. The applicant’s representative also requested the exercise of the Tribunal’s discretion to disclose the material to the applicants.

26. On consideration of this submission, the Tribunal wrote to the Department of Home Affairs on 23 August 2018 advising that it did not believe the certificates to be valid, and requesting that the Department consider revoking the certificates or re-issuing them stating the public interest consideration and describing why disclosure of the documents in question would be contrary to that same interest. On 23 August 2018, the Department wrote to the Tribunal revoking the certificates.

27. At hearing on 4 September 2018, the Tribunal advised the review applicant that the certificates had been revoked and that the report and relevant documentation relied upon by the Visa Integrity Unit could be fully disclosed to her. The Tribunal also asked the review applicant if she maintained that the death certificates are genuine. After consulting privately with her representative, the review applicant advised the Tribunal that the death certificates provided for her father and step-mother are not genuine. Accordingly, the review applicant stated that she did not wish to have any further opportunity to comment on the report and relevant documentation relied upon by the Visa Integrity Unit.

28. In considering this adverse information, the Tribunal finds that the review applicant has confirmed that the death certificates for her father and step-mother are not genuine. The Tribunal therefore gives the provision of these non-genuine documents – and the applicants’ inability or failure to provide genuine death certificates despite repeated requests – significant weight in establishing whether the applicants’ father and step-mother are in fact deceased, and hence whether the applicants cannot be cared for by either parent because each of them is dead (r.1.14(b)). In this regard, the Tribunal notes also the advice provided to the applicants’ representative by the Department at [22] which suggests that if the deaths occurred in a hospital, as inferred by the letters provided by the Consultant General Surgeon at Kenyatta National Hospital, then the deaths should have been recorded and genuine death certificates obtainable.

29. The Tribunal has also carefully considered the question of whether or not the applicants’ father and step-mother are in fact deceased with regard to the oral evidence given by the review applicant and the first-named visa applicant at hearing on 4 September 2018, and with regard to the additional documentation provided in support of the applicants’ claims that their parents have died and/or that the applicants reside without their father and mother.

30. In oral evidence, the review applicant stated that she understood her father died in the town of Bula Hawo, Somalia near to the border with Kenya in October 2011. She stated that she understood he spent time in hospital prior to his death, but that he had died in the family’s home and not in a hospital as inferred by the letter from the Consultant General Surgeon at Kenyatta National Hospital. The review applicant could not provide specific details regarding the circumstances of her father’s death, however the Tribunal accepts her statement that as she resided in Australia at that time, the review applicant knew only what her sister, the first-named visa applicant, had related to her regarding the circumstances of her father’s illness and subsequent death.

31. In oral evidence, the review applicant stated that she understood her step-mother had also died in the town of Bula Hawo in February 2012. She stated she understood her step-mother had been suffering from depression and high blood pressure. She stated that she understood her step-mother had died in the family’s home and not in a hospital. The review applicant could not provide specific details regarding the circumstances of her step-mother’s death, but the Tribunal again accepts her statement that as she was residing in Australia at that time, the review applicant knew only what her sister, the first-named visa applicant, had related to her regarding the circumstances of her step-mother’s illness and subsequent death.

32. The Tribunal took oral evidence from the first-named visa applicant regarding the circumstances of her father’s alleged death. In considering this evidence, the Tribunal had regard to the first-named visa applicant’s age at the time of her father’s claimed decease in October 2011 (i.e. she was thirteen years old). In oral evidence, the first-named visa applicant was unable to provide the Tribunal with a credible account of the circumstances of her father’s alleged death in October 2011. She stated that a neighbour confirmed his death and that he had a heart attack and died at the family’s home in Bula Hawo, in which she was also living at that time. In response to questions from the Tribunal, the first-named visa applicant could not recall the time of day at which her father allegedly died or when his body was found; the name of his doctor; or the circumstances of any burial arrangements. The Tribunal found the first-named visa applicant’s account of her father’s alleged death to not be credible. The Tribunal therefore gives little weight to the first-named visa applicant’s oral evidence in determining whether her father is in fact deceased.

33. The Tribunal also took oral evidence from the first-named visa applicant regarding the circumstances of her step-mother’s alleged death. In considering this evidence, the Tribunal also had regard to the first-named visa applicant’s age at the time of her step-mother’s claimed decease in February 2012 (i.e. she was fourteen years old). The first-named visa applicant was unable to provide the Tribunal with a credible account of the circumstances of her step-mother’s alleged death in February 2012. She stated that her step-mother had mental health issues. She stated that they found her step-mother in bed at the family’s home in Bula Hawo and that they could not wake her up. In response to questions from the Tribunal, the first-named visa applicant could not recall the time of day at which her step-mother allegedly died or when her body was discovered; the name of her doctor; or the circumstances of any burial arrangements. The Tribunal found the first-named visa applicant’s account of her step-mother’s alleged death to not be credible. The Tribunal therefore gives little weight to the first-named visa applicant’s oral evidence in determining whether her step-mother is in fact deceased.

1. As noted above at [7-8] and [10], the Tribunal considered the written statements provided by individuals in Kampala claiming to have specific knowledge of the applicants and their circumstances. Both the person claiming to be the local council Chairman and a person claiming to be a general practitioner who provides medical care for the fourth-, fifth-, sixth-, seventh- and eighth-named visa applicants, state that they know the applicants live without their father and mother; the letter provided by a person claiming to be the Head Teacher at the primary school makes no reference to the whereabouts or otherwise of the applicants’ father and step-mother. None of these individuals claim to have any direct knowledge of the applicants’ father and step-mother or the circumstances of their claimed deaths.

2. As stated above at [7], the Tribunal was not able to test the veracity of this evidence through examination of the persons at hearing. Accordingly, the Tribunal has considered the written statements provided by the individuals at face value. The Tribunal notes that the Head Teacher at the primary school makes no reference to the whereabouts or otherwise of the applicants’ father and step-mother. The general practitioner states that the fourth-, fifth-, sixth-, seventh- and eighth-named visa applicants live “with no mother or father”, but provides no detail regarding the applicants’ circumstances and no information regarding the alleged deaths of either parent. Neither individual claims to have any direct knowledge of the applicants’ father and step-mother or the circumstances of their claimed deaths. The Tribunal therefore gives these letters little weight in determining whether the applicants’ parents are in fact deceased.

3. The two letters provided by the local Council Chairman provide more detail regarding the applicants’ situation and circumstances. The Tribunal notes that in the gentleman’s second letter dated 8 October 2018, he claims to be a neighbour of the applicants and that the first-named visa applicant has told him about the deaths of her father and step-mother. The gentleman does not claim to have any direct knowledge of the applicants’ father and step-mother or the circumstances of their claimed deaths. The Tribunal therefore gives the letters provided by the local Council Chairman little weight in determining whether the applicants’ parents are in fact deceased.

4. As noted above at [20], the Tribunal also considered the letters dated 21 October 2015 provided by a gentleman identifying himself as a Consultant General Surgeon at Kenyatta National Hospital and claiming to have attended both the applicants’ father and step-mother in their last illnesses prior to their claimed deaths in October 2011 and February 2012 respectively. The Tribunal notes that the letters were dated several years after the claimed deaths of both persons and it is unclear whether the gentleman attended the applicants’ father and step-mother at home or in a hospital setting. The Tribunal notes also that the gentleman’s professional title and the address details on the letters place him in Nairobi, several hundred kilometres from the claimed place of the persons’ deaths in Bula Hawo on the Kenya-Somalia border. The Tribunal therefore gives the letters provided by the Consultant General Surgeon little weight in determining whether the applicants’ parents are in fact deceased.

5. On consideration of all the evidence - the oral evidence provided by the review applicant and the first-named visa applicant regarding the claimed deaths of their father and step-mother; the counterfeit death certificates provided by the applicant; the inability of the applicants to provide genuine death certificates or burial permits; and the documentation provided by third parties - the Tribunal finds no credible evidence that the applicants’ father and step-mother are in fact deceased. The Tribunal reasons that the counterfeit death certificates provided, the failure to provide genuine death certificates or burial permits, and the paucity of the first-named visa applicant’s knowledge of the claimed deaths of her father and step-mother combine to suggest that the individuals are not in fact deceased. Hence, the Tribunal is not satisfied that the visa applicants are the “orphan” relatives of the review applicant.

6. On consideration of all the evidence, the Tribunal therefore finds that r.1.14(b) was not met at the time of application and continues not to be met at the time of decision.

   Conclusion

7. Given the findings above, cl.117.211 is not met. It follows that cl.117.221 is not met.

8. 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

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

   Shane Lucas
   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.