Said Ali (Migration)

[2019] AATA 5054

Said Ali (Migration) [2019] AATA 5054 (8 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdi Hakim Said Ali

VISA APPLICANT:  Master Yahya Hassan Said

CASE NUMBER:  1720441

DIBP REFERENCE(S):  2015075323 OSF2015075323

MEMBER:P. Maishman

DATE:8 November 2019

PLACE OF DECISION:  Perth

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 08 November 2019 at 2:44pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – representative’s attendance – hearing adjourned – orphan relative – age – discrepancy with school records – no parental care – verifiable documentary evidence of parents’ death – boarded a smuggler’s boat to escape from Somalia – common law presumption of death – credible witnesses – 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
Axon v Axon (1937) 59 CLR 395
Kim v MIAC [2007] FMCA 798
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 7 August 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 2 July 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 (the Regulations). Relevantly to this case, they include cl.117.211.

4. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is an ‘orphan relative’ as defined.

5. The Tribunal listed the application to be heard on 17 October 2019. That hearing was adjourned because the representative told the Tribunal at the commencement of the hearing he was not available to stay for the listed duration of the hearing. When questioned, the review applicant said he had no option but to proceed without his representative present. The Tribunal explained the hearing could be adjourned to a date when his representative could attend and relisted the application to be heard on 4 November 2019.

6. The review applicant appeared before the Tribunal on 4 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abdikadir Ahmed.  Mr Farah Olat Mohamed and the visa applicant gave oral evidence by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal had before it a copy of the Department’s file containing a copy of the visa application, sponsorship form and documents provided to the Department.

10. The review applicant gave the Tribunal a copy of the delegate’s decision record with his application for review. The delegate was concerned there was no evidence, apart from the review applicant’s submissions, that the visa applicant’s parents had died. The delegate was also concerned that a letter of support from the visa applicant’s school gave information that was inconsistent with the claims made by the review applicant.

11. The review applicant gave the Tribunal affidavits from the visa applicant and Mr Farah Olat Mohamed Ali sworn on 4 October 2019. The Tribunal also received a submission from the review applicant’s representative, a Pupils Progress Report for term three in year 2010, and a letter dated 27 September 2019 from the visa applicants primary school head teacher.

12. The review applicant, the visa applicant, Mr Farah Olat Mohamed and Mr Abdikadir Ahmed gave evidence separately at the hearing. The Tribunal found the oral evidence of each of the parties to be candid and consistent. The Tribunal is satisfied that the parties’ evidence is credible and that the parties are honest witnesses. The Tribunal accepts their oral evidence on that basis. The Tribunal has given the parties oral evidence significant weight together with the documentary evidence to reach the findings below.

13. The issue in the present case is whether the visa applicant is an orphan relative of the review applicant.

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

14. 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.

15. ‘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 the review applicant claims to be visa applicant’s uncle. Has provided DNA evidence confirming the probability that the review applicant and the visa applicant are related is 99.98%. A file note on the Department’s file indicates that the delegate is satisfied the visa applicant is a relative of the review applicant. There is nothing to suggest that the DNA test is not genuine. The Department’s file contains a copy of the review applicant’s certificate of Australian citizenship showing he acquired Australian citizenship on 16 March 2005. The Tribunal finds the review applicant is an Australian citizen. The Tribunal is satisfied the review applicant is an Australian relative of the visa applicant.

16. 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)

17. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa application records the visa applicant’s date of birth is 25 April 1999. The Department’s file contains a copy of the visa applicant’s passport showing his date of birth is 25 April 1999. The Tribunal notes the Department sought comment from the visa applicant about his school records that indicated his year of birth as being 2001. In response the school principal has provided a letter saying the school registrar had not sighted proof of birth, and the visa applicants Guardian provided a letter claiming the error was a miscommunication between the Guardian and the school management at the initial enrolment. The Tribunal finds the visa applicant’s correct date of birth is 25 April 1999 as recorded on his passport and in his visa application. On 2 July 2015 the visa applicant had not turned 18 years old. At the time of this decision the applicant is 20 years old. Accordingly r.1.14(a)(i) was met at the time of application and does not continue to be met at the time of decision.

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

18. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The visa applicant gave oral evidence that he continued to live with his guardian, Mr Farah Olat, and his guardian’s family. Following the hearing the Tribunal sent the review applicant an invitation to provide information about whether the visa applicant had a spouse or de facto partner. The review applicant provided a written response that the visa applicant has never had a spouse or de-facto partner. There is no evidence before the Tribunal that this is not the case and the Tribunal accepts the review applicant’s evidence. 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)

19. 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.

20. The Department’s file contains DNA evidence provided by the review applicant confirming the probability that the review applicant and the visa applicant are related is 99.98%. A file note on the Department’s file indicates that the delegate is satisfied the visa applicant is a relative of the review applicant. There is nothing to suggest that the DNA test is not genuine. The review applicant claims to be the uncle of the visa applicant and the Tribunal is satisfied that the visa applicant is the nephew of the review applicant. The Department’s file contains a copy of the review applicant’s certificate of Australian citizenship showing he acquired Australian citizenship on 16 March 2005. The Tribunal finds the review applicant is an Australian citizen. The Tribunal is satisfied the visa applicant is a relative of the review applicant who is an Australian citizen.

21. 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)

22. 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.

23. The visa application has been made on the basis that the visa applicant’s parents are deceased. There is no verifiable independent documentary evidence to support the claim.

24. Mr Farah Olat gave oral evidence that he is a distant relative/cousin of the visa applicant’s father. He was living with the visa applicant and his parents in Mogadishu in 2009. The visa applicant’s parents planned to escape from Somalia, with the visa applicant, by boat. Mr Farah Olat accompanied the visa applicant and his parents to the boat but the smugglers would not take the visa applicant as he was a child. It is his belief that adults paid more to get on a smugglers boat and the visa applicant’s place was taken by an adult. The visa applicant was left by his parents to be looked after by Mr Farah Olat as his guardian until they could send for him. Mr Farah Olat observed about 50 or 60 people got on the smugglers boat. A few days after the boat left, word passed around the Mogadishu community that bodies were washing up on the shore and Mr Farah Olat and other members of the community helped recover the bodies and they were buried in a mass grave. Mr Farah Olat saw the bodies of the visa applicant’s parents so knows that they were dead. Later in 2009 Mr Farah Olat took the visa applicant and escaped from Somalia by paying to be driven to the border of Kenya. They stayed in a refugee camp for about a month. Mr Farah Olat met and married a Kenyan woman and he and the visa applicant moved to her village in Garissa in late 2009.

25. The visa applicant says he remembers going to the boat but does not recall much about it other than in 2009 he lost his parents. The visa applicant recalled travelling to Kenya by car and then starting school. The visa applicant said he started school in year four and finished high school in 2018.

26. The review applicant gave oral evidence that Mr Farah Olat contacted him by telephone to inform him that his brother and sister-in-law, the visa applicant’s parents, had died trying to escape Somalia by boat. The review applicant was not aware of his brother’s plans to escape prior to being contacted by Mr Farah Olat. Mr Farah Olat told him he had helped recover the bodies and that his brother and sister-in-law were amongst the deceased. The review applicant sent Mr Farah Olat money to help him and the visa applicant pay to get over the border into Kenya. The Tribunal was concerned that the initial visa application indicated that the visa applicant was in Somalia until 2011, and in Kenya from 2011 onwards. This was inconsistent with the evidence that the visa applicant travelled to Kenya in late 2009 or early 2010 in order to commence schooling in 2010. The Tribunal accepts the review applicant’s explanation that an error was made when the initial application was completed on his behalf in 2012, and that information was transcribed into the subsequent visa application that is subject of this review.

27. Mr Abdikadir Ahmed gave oral evidence that he is from Kenya and heard through the community in around 2009 that the review applicant had suffered bereavement with the death of his brother and sister-in-law. Mr Ahmed is from a similar community and age-group to the review applicant and made contact with him to offer comfort and support which has continued over the years. Mr Ahmed says the review applicant’s mind has been divided between Kenya, where his nephew the visa applicant is, and Australia. Mr Ahmed visited the visa applicant and Mr Farah Olat in 2012 and 2017, taking gifts of clothes and essentials to them on behalf of the review applicant. Mr Ahmed noted the visa applicant’s orphaned cousins, the children of the review applicant’s deceased sister, had been already brought to Australia. Mr Ahmad said the visa applicant has no direct family in Kenya and should be with his uncle in Australia.

28. The Tribunal noted the documentary evidence of concern to the delegate. A letter provided to the Department by the Abrar Primary and Nursery School in Garissa, Kenya dated 27 October 2014 claimed the visa applicant was admitted to class one in their school in 2008 as an orphan. The delegate noted the claimed date of admission predated the claimed date of death of the visa applicant’s parents. The applicant provided the Tribunal a letter dated 27 September 2019 from the head teacher at Abrar Primary and Nursery School. The head teacher claims a crosscheck of the school admission records show the details on the previous letter were an error and that the visa applicant was admitted to class 4 in 2010 and was an orphan under the custody of a relative during his primary school life. 

29. The Department’s file contains a letter from the visa applicant’s secondary school principal dated 13 March 2017 confirming the visa applicant was currently a student at the school in form 3C. The letter is accompanied by a student result slip for form 2 in 2016. An Integrity officer from the Department visited the visa applicant secondary school on 31 March 2017 and verified the contents of the letter and confirmed with the school that the visa applicant enrolled at the school in February 2015.

30. The Tribunal is satisfied the applicant commenced school in Kenya in 2010 and that the letter dated 27 October 2014 from the Abrar Primary and Nursery School contained erroneous information. The visa applicant, Mr Farah Olat and the review applicant gave consistent independent evidence that the visa applicant finished secondary school in 2018. They each gave evidence that the primary school system ceased at Grade 8 and the secondary school system went from Form 1 to Form 4. The authenticated information from the visa applicant’s secondary school corroborates the logical progression of the visa applicant’s education from class 4 in 2010 to form 4 being the conclusion of secondary school in 2018.

31. The common law presumption of death is a rebuttable legal inference that in certain circumstances, after an absence of seven years, a person may be presumed dead: Axon v Axon (1937) 59 CLR 395. Where a claim has been made that a person has been missing for seven years or more, the common law presumption of death is a relevant consideration: Kim v MIAC [2007] FMCA 798 at [38]. Matters relevant to assessing whether a person may be presumed to be deceased include: whether other persons were likely to have received contact from the person presumed dead; what inquiries were made; the circumstances in which the person in question was last known to be alive; and any other relevant factors.

32. The Tribunal accepts the applicant’s representative’s submission they have attempted to obtain verification of the visa applicant’s parents death or burial in Somalia. The parties can only rely on their oral testimony. The Tribunal accepts that the visa applicant’s parents have been absent for seven years and there has been no contact from them. They were last known to be alive when they boarded a smuggler’s boat to escape from Somalia which was a common situation in Somalia in 2009. The Tribunal considers that the common law presumption of death applies in the applicant’s circumstances. The Tribunal finds that the applicant’s parents are deceased.

33. 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)

34. 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 applicant. There is no evidence before the Tribunal that there are compelling reasons to believe that the grant of the visa would not be in the best interests of the visa applicant. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

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

36. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, but only because the visa applicant has turned 18. It follows that cl.117.221 is met.

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

    DECISION

38. 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.

    P. Maishman
    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.