Rajabu (Migration)

[2018] AATA 5423

Rajabu (Migration) [2018] AATA 5423 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hamida Rajabu

VISA APPLICANTS:  Miss Shamilla NDIKUMANA
Miss Usuna SIYAJALI
Miss Hijira MUNEZERO

CASE NUMBER:  1614368

DIBP REFERENCE(S):  2014044649

MEMBER:Kira Raif

DATE:20 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2018 at 1:48pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – evidence of the visa applicants’ parents passing away – no contemporaneous records of deaths – probative value of death certificates submitted – statements from school and community leaders – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.111, 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 13 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 three siblings and are nationals of Burundi. The visa applicants were born in 2001, 2004 and 2007 respectively. They applied for the visas on 11 November 2014. 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 because the delegate was not satisfied the visa applicants were orphan relatives of the Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 14 and 20 November 2018 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter. 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). Relevantly to this case, they include cl.117.211.

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. 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. 

8. 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.

   Are the visa applicants orphan relatives of an Australian relative?

9. The review applicant provided to the Tribunal copies of the primary decision records in relation to each visa applicant, which contain the following information.

10. Each of the visa applicants stated on the application form that their mother is Adija Mundende and their father is Selemani Manirakiza. The visa applicants claim that both parents were deceased at the time the applications were made and the visa applicants provided with their application the two death certificates. Their mother is recorded as having passed away on 20 November 2009 and their father passed away on 1 August 2008. It is stated that both had died at home.

11. The review applicant told the Tribunal in oral evidence that her sister passed away in 2008 at home due to the HIV. She did not get any medication or treatment. Her husband passed away in a different area where he went to get medication but died of HIV a day later. The review applicant confirmed that she had presented the death certificates.

12. The delegate noted that the two death certificates were issued on 25 June 2014 and have sequential certificate and volume numbers. The delegate notes that in order to obtain the death certificate, it is necessary to obtain attestations from three commune leaders and the delegate formed the view that such certificates are of little probative value. The review applicant explained to the Tribunal that that death certificates are not usually issued in her country, so others had to apply for them. The review applicant said that to get the death certificate, one has to approach the village leader who knows the situation and can issue the document.

13. The Tribunal accepts that it may be the usual practice in Burundi not to issue death certificates at the time of death but the Tribunal shares the delegate’s concerns. There is no evidence that contemporaneous records of deaths are held or that any independent verification of death is carried out before a death certificate is issued. If the death certificate is issued on the basis of witness statements only, or the personal knowledge of the village head, the Tribunal is of the view that such documents may be more susceptible to fraud and misrepresentation, particularly as the certificates are issued several years after the claimed event and at the time when the migration application is being prepared. The Tribunal does not consider such documents to constitute probative evidence of deaths.

14. There are other concerns in relation to the claimed deaths of the children’s parents. The applicant told the Tribunal in oral evidence that she did not have any contact with her sister and her family before her sister and brother in law passed away. She said she learned about their deaths through a person who travelled to Burundi. The review applicant said that she had contact with her sister in 2007 when she was moving to a refugee camp but then lost contact and had no contact with her sister until her death. This evidence contradicts the review applicant’s declaration of 27 December 2015 which she submitted with the application. In that declaration, the review applicant stated that she maintained contact with her sister and her sister’s family in 2008, contrary to the claim to the Tribunal that there was no contact between 2007 and until after the sister’s death. Further, the review applicant stated in that declaration that she learned about the deaths of her sister and the sister’s husband from Fauzia and not from some person travelling between Australia and Burundi. The Tribunal has formed the view that the review applicant’s oral evidence to the Tribunal contradicts her written evidence to the delegate and that brings into question the review applicant’s credibility and the truthfulness of her claims.

15. The review applicant explained to the Tribunal that she has gone through traumatic situations, such as divorce, and she has ‘just remembered’ what happened. The review applicant presented no medical or otherwise probative evidence concerning any condition that may have affected her memory and the Tribunal does not accept that the discrepancies in her evidence were caused by the review applicant’s memory loss. The Tribunal has formed the view that the review applicant has been untruthful in her evidence concerning the claimed deaths of her sister and brother in law.

16. Another concern for the Tribunal relates to the children’s schooling records. The primary decision record indicates that the Department contacted the children’s school and confirmed the children’s enrolment between September 2013 and April 2015. The visa applicants’ parents were declared at the time of enrolment. Irankuna Alima attended the school and advised that she and Shamilla share the same father. The name of the father was listed in school records as Amis Abdala. Hijira’s decision record also indicates that the school had contact with the child’s parents and the last time such contact with the parents occurred was when they came to obtain the document presented for verification.

17. In response to the letter from the delegate, the applicants’ representative initially stated that they could not identity Amis Abdala and this person was not related to the visa applicants or the sponsor. In a subsequent correspondence, the visa applicants advised that Amisi Abdala was the father of Shemusa Amisi Mugisha. It was stated that the visa applicants were in the care of Ms Shemusa Amisi Mugisha since the deaths of their parents. However, the delegate noted that as the name of the visa applicants’ mother was correctly notified at time of the children’s enrolment, it made no sense that Amisi Abdala was identified as the children’s father, rather than the stated biological father Selemani Manirakiza. The delegate also noted that the mother was listed at the time of enrolment, suggesting she was alive in September 2013, contrary to the death certificate referring to her death in November 2009. The delegate was not satisfied the visa applicants’ parents have passed away.

18. In her submission to the Tribunal dated 30 October 2018 the review applicant confirms that the visa applicants’ parents passed away in 2008 and 2009. The review applicant states that the father of Shamilla, Usuna and Hijira is Manirakiza Zelemani and not Amis Abdala as stated in the school records during the Department’s verification. The review applicant admits that when the investigations were conducted, the children’s father was recorded as Amisi Abdala. She was confused by that information and asked her sister. She explained that after the children’s mother passed away, the review applicant’s younger sister Fauzia became responsible for the children while the review applicant provided financial support to the children. In 2011 the sister took the children to the primary school for enrolment. She could not enroll the children because she was asked to give a bribe. She explained the situation to her religious leader Amisi Abdala, who was a local sheikh and the sheikh decided to intervene to ensure the children got enrolled. He then took two of the children to school and they were enrolled. In September 2013 the sister planned to enroll the third child and because the sheikh already planned to enroll his own daughter in the same school, he took Shamila for enrolment. The review applicant states that to get the orphans enrolled at the school, Sheikh Amisi used his religious position and in order to simply the process, he told the school officer in charge of enrolment that they were his children  and put his own name as that of the father. He did so to facilitate children’s enrolment. He also asked the children to mention that family connection. Since applying for review, they approached the schools and were issued with letters rectifying the situation.  

19. The Tribunal finds the review applicant’s explanation unconvincing. The Tribunal does not consider it plausible that the local sheik would simply add three extra children as his own, over a period of some years, in order to overcome the enrolment difficulties. This is particularly so as the review applicant claims the sheikh is well known in the area and the Tribunal does not accept that the school would accept that he had extra three children that were not known as his children previously. The Tribunal also does not accept that the school would record the children’s parents simply on the basis of a verbal confirmation and nothing else (such as birth records, religious ceremony records or other confirmation of parentage) and that no official confirmation of relationship would be required. The Tribunal accepts the review applicant’s evidence that the practice in Burundi is different to the Australian practices but the Tribunal considers the review applicant’s explanations unpersuasive.

20. The Tribunal also notes that according to the information in the primary decision, the school referred to the children’s parents, and not only the father and, importantly, that the children’s mother was correctly identified in the school records. This cannot be explained by the fact that the local sheikh recorded the children as his own.

21. The Tribunal also considers it significant that, according to the primary decision record, the parties stated in response to the delegate’s natural justice letter that initially they could not identify Amis Abdala and later they claimed he was the father of the guardian Ms Shemusa Amisi Mugisha. It was not until recently that the review applicant claims he was the local sheikh. That explanation appears to contradict the earlier evidence provided to the delegate.

22. The primary decision record also indicates that the names of both parents were recorded on the children’s school records, not only the name of the father. The review applicant told the Tribunal that, in her understanding, the father was recorded as Amis Abdala but not the mother and may be Mr Abdala gave the name of his wife as the children’s mother. However, the primary decision record indicates that the name of the applicants’ was correctly advised at the time of enrolment. “Correctly advised” suggests that it was the mother’s name consistent with the information on the application form, and not anyone else’s name, recorded on the school records. The Tribunal considers it implausible that the name of the mother would be recorded on the school records if the mother had passed away by the time of enrolment.

23. The Tribunal does not accept the review applicant’s evidence and does not accept that it genuinely reflects what occurred when the children were enrolled. The Tribunal acknowledges that the schools have now provided additional statements concerning the parents’ deaths but the review applicant’s own evidence is that the earlier evidence from the schools is unreliable. If that was true, then the school’s present indication that somebody else was the father of the children is equally unreliable because it could have been just as easily made on the basis of somebody’s statement. There is no reason in the Tribunal’s view to consider the more recent evidence more reliable. The Tribunal gives such statements no weight.

24. In light of the above concerns, the Tribunal is not satisfied that the visa applicants’ parents have passed away. The Tribunal reaches this conclusion despite the presented evidence, including the parents’ death certificates, statements from school and community leaders, oral evidence and other materials.

25. The review applicant told the Tribunal that she has spent a lot of money supporting the children and also on their migration application. She said she would not do that if their parents were alive. The Tribunal acknowledges that submission, however, the Tribunal is of the view that there may be many reasons why the applicant has made the decision to care for the children, including her responsibility towards her family. While the Tribunal accepts that the review applicant has been providing financial support to the children, the Tribunal does not consider that establishes that the children are in fact orphans.

26. On the evidence before it, the Tribunal is not satisfied that the visa applicants cannot be cared for by either parent because each of them is either 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 their Australian relative. They do not meet cl. 117.211 and c. 117.221.

27. There is no evidence that the visa applicants are the children of the sponsor or that they were adopted by the sponsor. The Tribunal is not satisfied the visa applicants meet the requirements for the grant of the Child and the Adoption visas.

    Conclusion

28. 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

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

    Kira Raif
    Senior Member