Salih (Migration)

[2019] AATA 6844

Salih (Migration) [2019] AATA 6844 (3 December 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jamila Omer Salih

VISA APPLICANTS:  Mr Muntasir Omer Saleh
Ms Esra Omer Saleh

CASE NUMBER:  1704813

DIBP REFERENCE(S):  2015062996/7 OSF2015/062996

MEMBER:Joseph Francis

DATE OF DECISION:  3 December 2019

DATE CORRIGENDUM

SIGNED:11 December 2019

PLACE OF DECISION:  Perth

AMENDMENT:  

The following corrections are made to the decision:

In Statement of Decision and Reasons, Paragraph 29, references to “the visa applicant” are amended by means of this Corrigendum to “the visa applicants”, so as to include both visa applicants, Mr Munstair Omer Saleh and Ms Esra Omer Saleh.

In Statement of Decision and Reasons, Paragraph 30, reference to “the visa application” is amended by means of this Corrigendum to “the visa applications”, so as to include both visa applicants, Mr Munstair Omer Saleh and Ms Esra Omer Saleh.

In Decision, Paragraph 31, reference to “the applicant” is amended by means of this Corrigendum to “the applicants”, so as to include both visa applicants, Mr Munstair Omer Saleh and Ms Esra Omer Saleh.

In Decision, Paragraph 31 is amended by way of this Corrigendum by inserting after “cl.117.211 of Schedule 2 to the Regulations”, an additional point with the words “cl.117.221 of Schedule 2 to the Regulations”.

In Decision, delete paragraph 32 by way of this Corrigendum.

On front page of Decision record, replace the Decision by means of this Corrigendum to read:

The Tribunal remits the applications for reconsiderations, with the direction that both applicants meet the following criteria for a subclass 117 visa:

·cl.117.211 of Schedule 2 to the Regulations; and,

·cl.117.221 of Schedule 2 to the Regulations.

Joseph Francis
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jamila Omer Salih

VISA APPLICANTS:  Mr Muntasir Omer Saleh
Ms Esra Omer Saleh

CASE NUMBER:  1704813

DIBP REFERENCE(S):  2015062996/7 OSF2015/062996

MEMBER:Joseph Francis

DATE:03 December 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 117 visa:

·cl.117.211 of Schedule 2 to the Regulations

Statement made on 03 December 2019 at 3:31pm            

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 117 (Orphan Relative) – orphaned relatives – siblings of review applicant – evidence of parents’ deaths – mother’s death known and accepted – father’s whereabouts unknown since 2013, accepted as dead – decision under review remitted

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

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 to refuse to grant the applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 14 December 2015. The delegate refused to grant the visas on 10 January 2017.

2. The delegate made the decision on the basis that the applicants failed to provide satisfactory evidence that they are orphaned children as their father is of unknown whereabouts and also that they are being sponsored by a relative. In relation to these two concerns, the delegate was not satisfied that sufficient evidence was provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. The Tribunal listed the application and heard from the visa sponsor on 13 November 2019.  The applicant was assisted by an interpreter in Arabic and English languages.

4. The applicant was represented during the hearing by Mr Henry Christie.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal had information before it, submitted by the review applicant, which was not entirely contained in either of the visa applicants’ files, or was unavailable to the delegate.

6. In particular, the UNHCR issued document “SUDERTWMFA002”, indicating the family of Mr Saleh Mahmoud OMER, with a family size of eight and Country of Origin ERITREA, Registration date 17 November 2002, was submitted by the review applicant.  This document was released to the review applicant by the Department of Home Affairs under FOI, However only the second page was held on one visa applicants file, that of Mr Muntasir Omer SALEH.

7. The Tribunal finds this evidence sufficient to satisfy the concerns with regard to the relationship between the visa sponsor and her twin-siblings, the visa applicants.

8. The Tribunal also had before it a letter dated 10 February 2017 from FAU 5 Refugee Camp, Sudan, indicating the visa applicants’ father departed for Libya on 5 November 2013 and has not been heard from since.  This document was issued after the decision of 10 January 2017 of the delegate.

9. The review applicant, Ms Jamila Omer Saleh, gave evidence at the hearing.

10. Ms Saleh arrived in Australia on a partner visa in 2007.  Ms Saleh resided in Australia for six years prior to her father’s disappearance.  Ms Saleh provided evidence with regard to how she was close to her father and spoke to him over the phone on a regular basis whilst she was in Australia and he was in a camp in Sudan.  Ms Saleh told the Tribunal that her father would know how to contact her in Australia and would have done so if he was still alive. The Tribunal found her evidence to be candid and credible, and that she was an honest witness.  The Tribunal accepts the oral evidence on that basis.

11. 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?

12. 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.

13. ‘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 older sister of the visa applicants. She has provided evidence through the UNHCR Crystal report (that was obtained from the Department of Home Affairs under FOI) which indicates the members of her family unit, notably her parents, herself, and five other siblings. Her twin siblings who are the visa applicants are listed on this UNHCR report.  Additionally the review applicant also gave oral evidence that she was in attendance at the time of birth of her twin siblings and recalls the occasion clearly.

14. The Tribunal is satisfied the review applicant is an Australian relative of the visa applicant.

15. 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)

16. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa application records the visa applicants date of birth is 01 January 1998. During interview, the sponsor has recalled a date of birth of 10 December 1998.  The UNHCR card lists a year of birth for the visa applicants as 1998. Tribunal considers that the camp records are the most reliable record of the visa applicants’ year of birth which is consistent with the review applicants’ recollection that her siblings were born in December 1998. The Tribunal finds the visa applicant’s correct date of birth is 10 December 1998.  At the time of the visa applications on 14 December 2015 the visa applicants had not turned 18 years old. At the time of this decision the applicants are 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)

17. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The review applicant gave oral evidence that her siblings continued to live with their sister in Sudan. Following the hearing the review applicant provided updated statements that both the visa applicants have not 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)

18. 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.

19. 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)

20. 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.

21. The visa application has been made on the basis that the visa applicants’ parents are deceased.

22. The Tribunal accepts that the visa applicants’ mother passed away on 22 May 2013 in Khartoum.

23. The Tribunal accepts that the visa applicants’ father passed away with a date and location unknown.  Mr Omer Salih Mahmoud departed Sudan for Libya on 05 November 2013. His family have not heard from Mr Mahmoud since late 2013 after making a phone call to his family from Tripoli.

24. The Review applicant is the older sister of the visa applicants and is an Australian Citizen.

25. The Tribunal accepts the applicant’s representative’s submission they have attempted to obtain verification of their father’s death. The parties can only rely on their oral testimony. The Tribunal accepts that the visa applicant’s father has been absent for six years and there has been no contact from him. The Tribunal finds that the applicant’s parents are deceased.

26. 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)

27. 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.

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

29. 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.

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

    DECISION

31. 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

    DECISION

32. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 117 visa:

    ·cl.117. 211 of Schedule 2 to the Regulations

    Joseph Francis
    

    Member