Roble (Migration)

[2023] AATA 521

Roble (Migration) [2023] AATA 521 (14 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yahya Hussein Roble

VISA APPLICANTS:  Mr Ayow Hussein Roble
Mr Khadar Hussein Roble

CASE NUMBER:  2119915

HOME AFFAIRS REFERENCE(S):          2019008988 & 2019009081

MEMBER:Justin Meyer

DATE:14 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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 14 March 2023 at 11:41am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – DNA testing results – death of parents – best interests of the visa applicants – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; 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 a decision made by a delegate of the Minister for Home Affairs on 14 October 2021 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 31 October 2019. 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 and 117.221.

4. The delegate refused to grant the visas because (per his decisions for both visa applicants):

   You claim that the sponsor Mr. Yahya Hussein ROBLE is your brother. In assessing these claims I have considered historic information from previous applications involving your sponsor.

   The sponsor was granted a Child (Class AH) Orphan Relative (Subclass 117) visa on 12 July 2010 and arrived in Australia on 08 September 2010. Since his arrival, he has not departed Australia. At time of his subclass 117 visa application, his sponsor (aunt) advised that your sponsor’s parents and three of their children were killed in August 2008 in Mogadishu when their house was attacked. In respect to his parents, the sponsor (aunt) did not provide any secondary marriages or children.

   Given the conflicting information on the family composition in your claimed brother’s (sponsor) and your current application, a natural justice letter was sent to you on 08 September 2021. An invitation to undertake DNA testing to determine your exact relationship to your sponsor was also sent on 08 September 2021. The letters gave 28 days in which to respond.

   As of 14 October 2021, time of decision, you have not responded to the Department’s invitation to comment or the invitation to undertake DNA testing.

   I have therefore considered all the information available to me. This includes the information provided by your sponsor in his migration record. Given the brevity of evidence submitted in this application, I find I am not satisfied that you have been able to demonstrate that you are a relative of the sponsor in accordance with regulation 1.14(a)(iii).

   ….

   In this application you have advised that your parents Hussein Roble ALI and Asho Ahmed ABDULLE are deceased.

   You have not provided substantive evidence – besides a birth certificate issued in 2019 to support that your parents are Hussein Roble ALI and Asho Ahmed ABDULLE.

   I have considered the information and documentation provided with your application and I am not satisfied that you are a relative of your sponsor. Accordingly, I am not satisfied that you cannot be cared for by either parent because each of them is either dead, permanently incapacitated, or of unknown whereabouts. You therefore do not meet the requirements of regulation 1.14(b)

   I therefore find that you fail to satisfy clause 117.211 of Schedule 2 to the Migration Regulations.

5. The review applicant appeared before the Tribunal on 9 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from both visa applicants by telephone from Kenya, where they reside. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

6. The two separate delegate refusals for the two visa applicants’ applications were dealt with in one hearing and the Tribunal combines its review of both delegate decisions as the same dispositive issue is present in both.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicants are orphan relatives.

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

9. 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.

10. ‘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, the Review Applicant, Mr Yahya Hussein Roble, is the relevant Australian relative. He is the brother of the visa applicants. He is an Australian citizen.

11. For the reasons below, the visa applicant were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. There is evidence is in the form of Somali birth certificates of 23 July 2019, which lists the birthdates of the applicants, which match the dates and names given the visa applications. Therefore, the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.

    Age – reg 1.14(a)(i)

12. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicants provide documentary evidence that they are presently aged 18 and 19. They were all under 18 at the time of application. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18.

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

13. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Having questioned the applicants and examined all materials before me there is no evidence that this has occurred. Accordingly, 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)

14. 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.

15. Having questioned the applicants and examined all materials before me there is no evidence that the review applicant (sponsor) is anyone else than the visa applicants’ brother, who is an Australian citizen. The Tribunal received confirmation from the department on 4 November 2022 that DNA testing had shown that the visa applicants and the review applicant (sponsor) are all brothers.  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 – reg 1.14(b)

16. 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.

17. The Tribunal has questioned, in detail, the review applicant (sponsor) and the visa applicants on the claimed death of their parents. Throughout the hearing and in the written evidence the parties have consistently claimed that their parents died in August 2008 while in their home in Mogadishu, Somalia.

18. Their evidence was consistent with the written claims, and the witnesses corroborated each other in their accounts of the parents’ death.

19. At the time of his own subclass 117 visa application, the review applicant’s (sponsor’s) aunt advised that the parents and three of their children were killed in August 2008 in Mogadishu when their house was attacked. 

20. The Tribunal has examined the review applicant’s (sponsor’s) aunt’s declaration of that time (declared 24 November 2008) and finds it to be corroborative evidence. It is consistent with his claims today.  The Tribunal asked the review applicant (sponsor) if his own orphan relative visa application was granted at first instance by the department to which he replied that it was, and he had not needed to appeal the decision.

21. The review applicant (sponsor) is 29 years old and came to Australia some 12 years ago with his sister under an orphan visa, sponsored by his aunt. He said that when he was young his family arranged for the visa applicants to move away from the family home in Mogadishu to live with their grandfather in another city, because of safety fears.  The visa applicants were toddlers at the time. This was corroborated by their oral evidence.

22. The review applicant (sponsor) learned of the death of his parents and three of his other siblings straight away. He said he was told by neighbours that his parents were dead. He was fortunately not at home but at ‘basic’ school classes and thus was away from the house at the time of the attack. The house was so badly damaged that no one could live there.

23. The review applicant (sponsor) said that his brothers lived in Nairobi, Kenya and lived alone, supporting one another. He regularly sent sums by money transfer, for which he provided much evidence in the form of receipts. The brother do not work, nor are they at school but they read and try to educate themselves. This was corroborated by their evidence.

24. The parties provided a consistent and straightforward narrative and I do not have reason to doubt their evidence.

25. The written evidence of their parents’ death is restricted to:

    ·An affidavit of 13 August 2008 of two officials that the couple died on 1 August 2008 due to an attack, sworn before a judge;

    ·The earlier mentioned affidavit of the parties’ aunt; and

    ·A declaration from a friend and neighbour of 9 September 2009, to the same effect.

26. Given the prevalence of document fraud in countries such as Somalia, the documents are treated with some lower weighting. However, balanced against this is the difficulty in obtaining such documents legitimately in what is an underdeveloped country, and considered in some quarters to be a failed state.[1] On balance, I give some regard to this documentation.

    [1] >

    I also give consideration to the conflict in Somalia, especially at the period in question (2008). It is correct that there were attacks in Mogadishu during different months of that year. Ethiopian and Somali armed conflict took place. There were hundreds of civilian deaths in that year. Violence in August 2008 in Mogadishu is depicted in at least one human rights organisation’s account of the time. [2]

    [2] "So Much to Fear": War Crimes and the Devastation of Somalia | HRW  >

    I have seen no evidence to suggest that this event did not occur and note that the department accepted this as fact in the review applicant’s (sponsor’s) own orphan relative visa decision regarding these circumstances, more than a decade ago. I do not depart from that conclusion.

27. Therefore, the Tribunal is not satisfied - on the evidence before it - that there is a good reason to question the death of the parents of the visa applicants.

28. The Tribunal concludes that the visa applicants’ parents died in August 2008.

29. I find the visa applicants cannot be cared for by either parent because each of them is dead.

30. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

31. 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 visa applicants. Given the hardship in Somalia and care offered by the review applicant (sponsor) this would be in their best interests. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

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

33. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18. It follows that cl.117.221 is met.

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

    DECISION

35. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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.

    Justin Meyer
    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.