Omer (Migration)

[2022] AATA 2682

Omer (Migration) [2022] AATA 2682 (2 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hawi Mohamed Omer

VISA APPLICANTS:  Mr Omer Mohamed Omer
Master Gamachu Mohamed Omer
Miss Mabruka Mohamed Omer
Miss Qanani Mohamed Omer
Mr Caya Mohamed Omer

CASE NUMBER:  1716503

HOME AFFAIRS REFERENCE(S):          2015075732

MEMBER:David Crawshay

DATE:2 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 02 June 2022 at 9:54am

CATCHWORDS
MIGRATION– cancellation – Subclass AH (Orphan Relative) visa – Subclass 117– visa applicants were not orphan relatives of an Australian relative at the time of application – no contemporaneous evidence of the claimed disappearance of Arebu or the claimed death of Mohamed – not satisfied that the visa applicants cannot be cared for by either of their parents because each of their parents is dead or of unknown whereabouts – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.03,1.14, Schedule 2, cls 117.111, 117.211

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 and Border Protection on 18 July 2017 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 comprise Mr Omer Mohamed Omer as first-named visa applicant and four other visa applicants – all of whom are claimed to be siblings of the review applicant. The review applicant and the visa applicants will hereafter be referred to as “the parties”. The visa applicants applied for the visas on 23 December 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.

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 which requires a visa applicant to be the orphan relative of an Australia relative.

4. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations. Specifically, the delegate was not satisfied that the visa applicants could not be cared for by either parent because each of those parents is dead, permanently incapacitation or of unknown whereabouts.

5. The review applicant appeared before the Tribunal on 12 July 2021 to give evidence and present arguments (initial hearing). The Tribunal also received oral evidence from the first-named visa applicant, Mr Caya Omer, and Miss Qanani Omer. A further hearing was held on 23 July 2021 in which the review applicant’s non-travelling brother, Mr Ibsa Omer was questioned (second hearing). The second hearing was conducted by means of Microsoft Teams video. A third, in-person, hearing was held on 29 July 2022 where the Tribunal heard from another of the visa applicants, Master Gamachu Omer, as well as from friends of the review applicant – Mr Zakir Ahmed, Mr Fahmi Mohamed and Mr Mohamed Waday.

6. The Tribunal hearings were conducted with the assistance of interpreters in the Oromo and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants were and continue to be orphan relatives of the review applicant pursuant to the Migration Regulations.

   Are the visa applicants orphan relatives of an Australian relative?

10. Clause 117.211 requires that at the time of application a visa applicant is an orphan relative of an Australian relative (cl.117.211(a)) or is not an orphan relative only because that visa applicant has been adopted by an Australian relative (cl.117.211(b)). A 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.

11. “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 a 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 review applicant, as the sister of the visa applicants, is the relevant Australian relative.

12. For the reasons below, the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, 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)

13. Regulation 1.14(b) requires that a 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.

14. At the initial hearing, the review applicant was asked about the claimed disappearance of her mother. She said that it occurred on 14 October 2011, and she found out a few days later from her older brother, Mr Ibsa Mohamed Omer, who is a non-migrating relative of her. She said that she also spoke to Mohamed, her father. When asked what efforts were made to attempt to locate Arebu, her mother, the review applicant told it that Mohamed had reported it to the police. The review applicant said that she had no idea where Arebu might have gone. She said that Mohamed went to visit Arebu’s relatives to see if she was there, but she was not.

15. When asked about why Arebu would have left the family, the review applicant said that it might have been due to the pressure she received from Mohamed’s family. The review applicant said that her maternal uncle had married her paternal aunt but, because of disagreement, they divorced. She said that there was a dispute about property thereafter (Arebu’s family were given a farm as an inheritance) and her father’s sisters used to abuse Arebu physically and verbally. In one such incident, it was claimed that Mohamed’s sisters threw rocks at her when he was not at home. It was claimed that Arebu would tell Mohamed about these incidents but he would do nothing.

16. The Tribunal heard from the review applicant that Mohamed looked after the visa applicants after Arebu left and until he died of malaria in December 2013. She said that he died in the family house. She said that Ibsa informed her of the death. She said that she was heavily pregnant and was unable to travel at that time. In this regard, the Tribunal has seen a birth certificate for a child of the review applicant born on 16 December 2013.

17. When asked about what rituals were performed for Mohamed, the review applicant said that it was an Islamic ceremony at a mosque (from what she was aware, given that she was heavily pregnant at the time). She said that the ceremony was recorded by someone called Zakir. She said that she cried a lot when she saw the video and asked Zakir if she could get a copy but he had misplaced it. She said that she asked him in the following days or weeks to give it to her but he said that the mobile phone had been damaged.

18. The Tribunal has considered testimony given by some of the review applicant’s siblings, including Ibsa who is listed as a non-migrating member. Ibsa told it that Arebu left on 14 October 2011 after a conflict between her and Mohamed. He said that Mohamed’s sisters were verbally abusing Arebu and throwing stones on the roof of the house. He said that she was always crying and could not stand it anymore. When asked if there was a cause for this animus, he said that there is a pre-existing connection between the families because his uncle married his aunt on his father’s side. He said that Mohamed looked after them after she left. He said that she gave no indication that she was going to leave.

19. Omer, who was listed as being born in 1997, told the Tribunal that he remembered when his mother left in October 2011.When asked what he did at that time to try and find her, he said that he was very young and did not know what to do. He said that his father, Mohamed, was trying to look for her. When asked why he though she might have left, Omer replied that he was very young but was told by his older brother (Ibsa) that she was being pressured by Mohamed’s relatives and had no psychological support from Mohamed. He said that he could vividly remember Mohamed’s sisters throwing rocks at their house, but that Mohamed’s brothers did not pressure her. When asked about where he and his siblings lived, he said that they were taken in by their uncle, Dame, when Mohamed died, but Ibsa took over later on. When asked about Mohamed’s passing, he said that he was unwell for a while with malaria. He said that he went to the hospital for a while and then came home. When asked for how long Mohamed was sick, Omer said that he did not exactly remember. When asked what rituals were performed after Mohamed’s death, he said that his body was taken to the mosque where his body was prayed over before taking him to his grave.

20. Qanani, who was listed as being born in 2004, said that she had heard that Mohamed was sick and that he died of malaria. Caya, who was listed as being born in 2001, said that he had been left with no mother or father. Gamachu, who was listed as being born in 2007, said that he was too young to remember anything of what happened.

21. The Tribunal has been presented with documents that seek to attest firstly to the disappearance of Arebu and secondly to the death of Mohamed. However, these documents were all generated at least two years after the dates of the claimed events:

    ·a letter from the West Hararghe Zone Police in relation to the claimed 2011 disappearance of Arebu is dated 31 July 2017, which the Tribunal also notes is just after the delegate refused the visa applications;

    ·a certificate in respect of the claimed 2013 death of Mohamed was issued by the Gelemso Town Administration on 13 October 2015; and

    ·a letter from the medical director of the Gelemso General Hospital stating that Mohamed received treatment for malaria on 6 December 2013 is dated “21/10/2013” and the Tribunal accepts that this is an Ethiopian Calendar date which corresponds with 28 June 2021 in the Gregorian Calendar.

22. The Tribunal finds that there is therefore no contemporaneous evidence pertaining to the disappearance of Arebu on the one hand and the death of Mohamed on the other. It has concerns about why this would be the case For this reason, while the Tribunal gives this evidence some weight as evidence that corroborates the events claimed by the parties, its weight is diminished.

23. Additionally, and in terms of the cause of death of Mohamed, the available information indicates that malaria in the Gelemso area of Ethiopia had almost been eliminated by 2011.[1] When this information was put to the review applicant at hearing, she responded that there is no proper diagnosis in Ethiopia, and that the majority of people die in their own houses. She said that she was told that Mohamed died of malaria.

    [1] The number of confirmed malaria cases in the Gelemso area had fallen to six in 2011 and the number of deaths to zero.

24. The Tribunal has considered the information and the review applicant’s response. While it accepts that this information alone would not be sufficient to prove that Mohamed did not have malaria, as there are always exceptional cases, it does cause the Tribunal to have doubts at the very least about the claim that he died of malaria when coupled with concerns it had in other areas such as the lack of contemporaneous evidence of his death. It gives this evidence some weight.

25. Other documents appear on the Department and Tribunal files but, unhelpfully, these are in a language other than English and the Tribunal has not been able to find a translation for them. Included in these documents are what appear to be a letter and a document from a high school in Ethiopia, a document from a kebele administration and a letter from an imam. These are unfortunately given no weight. Other letters from the schools which are attended by the visa applicants are translated, but these do not contain any information that is relevant to the question of whether the visa applicants are orphan relatives. They are also given no weight.

26. A woman’s photograph was submitted and the file name is “REview applicant older brother sent photo of Arebu to her”, suggesting that the photograph is of Arebu. While this photograph may very well be of Arebu, it is not relevant to the question of whether she disappeared. Another photograph was submitted that was said to be Mohamed’s grave. Without more evidence the Tribunal is not able to attach much weight to this as being Mohamed’s gravesite.

27. Several receipts for remittances were provided at various stages, showing money transfers being made from the review applicant to Mr Dame Omer (who is claimed to be the visa applicants’ uncle) and then to her brother Ibsa. While this evidence may substantiate that the review applicant provides support to her relatives in Ethiopia, they are not probative of the question of whether the visa applicants are orphan relatives. They are given little weight.

28. Several photocopies of passport pages were provided, although these do not appear to be relevant to the question of whether the visa applicants satisfy the requirement under r.1.14(b) of the definition of “orphan relative” and their potential relevance was not explained. No weight is attached to them.

29. A screenshot of what are described as recent communication records between the visa applicants and review applicant are included, although these are not able to be read due to the low resolution of the image. No weight is given to this evidence.

30. An order from the Habro District Court dated 18/1/2008 (corresponding with 9 October 2015 in the Gregorian Calendar) was provided. The order states that the visa applicants’ mother disappeared in October 2011 and their father died in December 2013. The order states that they were being cared for by their uncle named Dame Omer, but he is incapable of providing food to the visa applicants in addition to his biological children. The order states that three witnesses have attested to knowing about the disappearance of the visa applicants’ mother, although the Tribunal was unable to ascertain who these three witnesses were and has not seen proof of their identities. The order purportedly approves the guardianship of the review applicant over the visa applicants.

31. The Tribunal has considered this document but does not accord it much weight as it is based almost exclusively upon reporting from the review applicant, who is listed as the petitioner, and Mr Ibsa Mohamed as the agent. There is no evidence that any verification process was carried out in relation to the disappearance of the visa applicants’ mother other than through the attestations of three witnesses. In relation to the latter, while the order states that three witnesses have attested to the disappearance of the visa applicants’ mother, their identities and how they know the family have not been provided. For these reasons, it gives this document very little weight.

32. The Tribunal has considered the testimony of the three third-party witnesses interviewed at hearing. Mr Zakir Ahmed described himself as the best friend of the review applicant’s uncle (on Mohamed’s side) who emigrated to Australia in 2014. When asked about what happened to Arebu, Mr Ahmed told the Tribunal that he did not have much detailed information, but that the review applicant’s uncle had said that she disappeared at some point and that there were family issues. When asked about Mohamed, Mr Ahmed said that he was sick and passed away but was not sure of what sickness he had. He said that he and the review applicant’s uncle were informed of Mohamed’s death at around midnight.

33. Mr Fahmi Mohamed said that he knew the review applicant as she was the wife of his brother. He said that he met Mohamed in 2012 when he was visiting Ethiopia. He said that he had not met Arebu as she had disappeared about a year before he went over. He said that the visa applicants were looked after by Mohamed at that time. When asked what happened to Mohamed, Mr Mohamed said that he became unwell and died. He said that the family told him that it was malaria. He said that this was a year or so after he came back from Ethiopia.

34. Mr Mohamed Waday told the Tribunal that he knew the review applicant since he first moved to Australia eight years ago. He said that he knew her family in Ethiopia “roughly”. He said that he heard of Arebu’s disappearance and the death of Mohamed.

35. The Tribunal finds that Mr Mohamed and Mr Waday have given mostly second-hand information in relation to the disappearance of the Arebu and the death of Mohamed. The testimony is, for the most part, not specific although some is consistent in broad terms with the claims made by the review applicant in relation to the purported disappearance and death. Owing to its quality as second-hand information, it is given little weight. The Tribunal has specifically considered the evidence given by Mr Ahmed, given that he claims to have been close to the review applicant’s uncle (who is Mohamed’s brother). While it notes that he claims to have been with this uncle at the time of being notified of Mohamed’s death, he was unable to tell it the cause of death. The Tribunal finds this lack of knowledge concerning given, as it has alluded to above, he claims to have been close to the review applicant’s uncle and was with him at the time of Mohamed’s death. It considers it reasonable that he would be able to know this information based on what he observed at that time and on his relationship with Mohamed’s brother. It gives his testimony little weight as a result.

36. The Tribunal has considered evidence that the funeral ceremony was recorded by a man called Zakir but that this footage is no longer available because the mobile phone in question was misplaced or damaged. Without the footage and without any statement or testimony from Zakir himself about the footage, the Tribunal is unable to give the review applicant’s claim much weight.

37. Lastly, the Tribunal has considered the contents of an allegation made by a member of the public, which it put to the review applicant under s.359AA of the Act as information that it considered would be the reason or a part of the reason for affirming the decisions under review. This information, contained within folios from the Department file, stated that the review applicant was sponsoring the visa applicants using fraudulent documents, that the review applicant was claiming that the visa applicants were orphans, that they live together with their parents in Ethiopia, and that the review applicant paid someone in Ethiopia to provide fake death certificates and false witness statements.

38. After confirming that she understood what the information was and its relevance, the review applicant said that she thought the source of the information was the sister of her husband. She said that this sister-in-law went back to Ethiopia to get married and began the visa process, but was frustrated and claimed that the review applicant and her husband were responsible for this by reporting that her marriage was not real and was a false marriage.

1. The review applicant said that her sister-in-law does not like her and referred to her as her “enemy” when interviewed by the Department. She said that this situation came about because most of the family of her sister-in-law disagreed with her decision to get married to her husband, including her father. She said that she tried to mediate the issues and to assist her sister-in-law.

2. The Tribunal has considered the information the subject of the s.359AA request and the review applicant’s response to it. It notes that the information is very specific and was therefore likely to have been given by someone with knowledge of the details of the review applicant’s family and the applications themselves, which could include, in this case, her sister-in-law. However, and in any case, the allegation was made anonymously and the Tribunal is therefore not aware of the identity of the person making the allegation or whether that person has any motivation to provide false information.

3. For this reason, the Tribunal accords the information the subject of the s.359AA request no weight.

   CONCLUSION

4. The Tribunal has considered the evidence in front of it in relation to whether the visa applicants cannot be cared for by either of their parents because, relevantly, each of them is either dead or of unknown whereabouts. It accepts that the testimony given by the review applicant and the visa applicants who were questioned by the Tribunal is broadly consistent concerning the claimed disappearance of Arebu and the claimed death of Mohamed. For this reason, it is given weight.

5. However, the Tribunal finds that the other evidence submitted, including documentary evidence such as a death certificate and letters from the police and medical practitioners, is not sufficiently probative to substantiate the parties’ claims. Specifically, and as stated above, there is no contemporaneous evidence of the claimed disappearance of Arebu or the claimed death of Mohamed. Moreover, and in relation to Mohamed, the Tribunal has concerns about the likelihood of him contracting and dying of malaria given statistical evidence from the year before that time that strongly indicates otherwise. As above, it also has concerns that someone described as a good friend of Mohamed’s brother did not know the details of Mohamed’s death.

6. Without the benefit of having sufficiently probative evidence to substantiate the claims made by the parties, the Tribunal is not satisfied that the visa applicants’ mother, Arebu, and their father, Mohamed, are unable to care for them because they are either dead (in the claimed case of Mohamed) or have disappeared (in the claimed case of Arebu). Therefore, it is not satisfied that the visa applicants cannot be cared for by either of their parents because each of their parents is dead or of unknown whereabouts.

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

8. The visa applicants do not meet the definition of “orphan relative” under r.1.14.

9. Given the findings above, cl.117.211 and cl.117.221 are not met in respect of the visa applicants.

10. There is no evidence to show that the visa applicants meet the requirements of Subclass 101 (Child) visas or a Subclass 102 (Adoption) visas.

    DECISION

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

    David Crawshay
    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.