Shah (Migration)

[2019] AATA 3765

Shah (Migration) [2019] AATA 3765 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sayed Ahmad Shah

VISA APPLICANT:  Mr Sayed Ahmad Ajmal

CASE NUMBER:  1701090

DIBP REFERENCE(S):  2016/036506 OSF2016/036506

MEMBER:Amanda Mendes Da Costa

DATE:29 May 2019

PLACE OF DECISION:  Melbourne

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 29 May 2019 at 10:00am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ‘orphan relative ’ of an Australian relative – maternal uncle  – mother passed away in traffic accident – no death certificate issued – father disappeared soon after  – whereabouts unknown – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.221

CASES
Axon v Axon (1937) 59 CLR 395
EC v MIMIA [2004] FCA 978
Kim v MIAC [2007] FMCA 798
Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 20 November 2016 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 13 January 2016. 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 and cl.117.221.

4. The delegate refused to grant the visa because the applicant did not meet cl.117.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant met the definition of orphan relative as set out in r.1.14(b) and therefore did not meet the requirements of cl.117.211 to Schedule 2 to the Regulations.

5. The review applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sayed Ahmad Ajmal, the visa applicant, by telephone from Kabul, Afghanistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

6. The review applicant provided the following documents to the Tribunal for the purposes of the review:

   ·Copy of the bio-pages of the visa applicant’s Afghan passport.

   ·Tazkira identity card No. [number] for the visa applicant.     

   ·Family composition table for the applicant’ family.

   ·Death certificate for the visa applicant’s mother, dated 1 August 2016.

   ·Certificates of activities undertaken by the visa applicant in Afghanistan.  These include a merit certificate from the Azeraksh Computer and English Language Academic Center dated 18 March 2104, a certificate of completion of a 1^st Dan Taekwondo promotion test issued by the Kukkiwon Taekwondo Headquarters dated 7 December 2017, and an English Language Achievement Card issued by the English Muslim Language Institute.

   ·Affidavit (Supervision certificate) filed in the Supreme Court of Afghanistan, dated 4 February 2019.

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 issue in the present case is whether the applicant meets the definition of orphan relative as set out in r.1.14(b).

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

10. 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.

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 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 is the relevant Australian relative.

12. The Tribunal notes that on 22 June 2016 a request for further information was sent by the Department.  In response the review applicant sent the Department a letter dated 1 August 2016 attesting to the death of the visa applicant’s mother, Ruqia in a traffic accident on 29 May 2005.  This letter further stated that the visa applicant’s father, Sayed Bostan was lost after the death of his wife.

13. In his decision the delegate noted that Departmental officers interviewed the sponsor by telephone on 13 November 2016.  During this conversation the sponsor explained that the applicant’s mother suffered a head injury when travelling to Mazar e Sharrif in northern Afghanistan to visit her husband’s family.  She was accompanied by her husband and two sons.  The sponsor could not recall exactly when the accident occurred and which hospital the visa applicant’s mother was taken to after the accident.  The sponsor was informed about her death by her husband three days later.  When asked about the whereabouts of the visa applicant’s father the sponsor said that after a while he remarried and left his children.  His family didn’t know where he was living.

14. The delegate expressed concern about the letter dated 1 August 2016 being issued 10 years after the apparent death of visa applicant’s mother on the basis of verbal testimony.  The delegate was also concerned that the document was acquired solely for the purposes of supporting the claims made in the visa application.

    Evidence of review applicant – Sayed Ahmad Shah

15. The review applicant is the maternal uncle of the visa applicant.  He was born in Kabul, Afghanistan and lived there until his arrival in Australia in February 2014.

16. The Tribunal notes that the Affidavit (Supervision Certificate) dated 4 February 2019 records that the Confessors to the document, being Ail Mohammad Khair Mohammad and Wahidullah Mohammad Kazim, attest to the visa applicant’s birth on 4 June 1999; that the applicant’s mother died in a traffic accident; that his father has disappeared; that the visa applicant has no administrator; and that his uncle and aunt are living abroad and wish to assume responsibility for the visa applicant’s supervision.

17. Mr Shah’s parents are no longer living.  His father died 23 years ago and his mother died in or around 2012.  Mr Shah was not able to remember exactly when.  He originally had 4 brothers and three sisters, 3 of whom are still living.  One of his brothers lives in the USA, another in Australia and one of his sisters lives in Iran.  Mr Shah said that his late sister Ruqia (the visa applicant’s mother) lived with her husband (Sayed Bostan) and two sons (Syed Ahmad and the visa applicant Sayed Ajmal) in a house in Kabul occupied by himself, his mother and other members of their family until his sister’s death in 2015.  The visa applicant’s father was an army officer with the rank of Lieutenant-Colonel.  Mr Shah explained that at the time of his sister’s death the visa applicant and his older brother were very young.

18. Mr Shah told the Tribunal that his sister died in a car accident when she and her husband and children were travelling to Mazar e Sharrif, a city situated in northern Afghanistan.  She died approximately three days after leaving Kabul with her family.  Mr Shah said that the family had travelled to Mazar e Sharrif for a spring holiday as it was a popular place for holiday makers.  Mr Shah was not aware of the circumstances leading to the accident but was told by his brother-in-law that his sister had sustained serious head injury and died in hospital in Mazar e Sharrif.  His sister’s body was transported to Karta Sakhi near Kabul where she was buried.  The funeral was attended by his brother-in-law, his nephews, his mother and other members of the family.  Thereafter, Mr Shah and other family members took his two nephews to visit their mother’s grave, usually on Friday night.

19. Mr Shah explained that there was no death certificate issued by the Afghan authorities when his sister died.  That was not unusual in Afghanistan where it was permissible to have a funeral and bury a person without a death certificate.   He said that official documentation was often only issued when required for a specific purpose such as application for a passport or university admission.

20. Following the death of the visa applicant’s mother, his brother-in-law and nephews continued to live with the family for several months.  Although they had separate bedrooms, his brother-in-law and his sons were living in the same house as the review applicant, his mother and other family members.  Prior to and after Ruqia’s death, Mr Shah and his brother-in-law had a warm and friendly relationship and Mr Shah told the Tribunal that his brother-in-law was a good and kind father.  The visa applicant’s father continued his employment as an army officer.

21. Mr Shah initially told the Tribunal that his brother-in-law remarried approximately 12 months after his wife’s death.  The Tribunal notes that he also told the Department that his brother-in-law had left his sons after he remarried.  The review applicant explained to the Tribunal that he and other members of the family were not present at the wedding and accordingly were not aware who he had married. When questioned by the Tribunal about the reason for the family not attending the wedding, the review explained that many women did not wish to care for their husband’s children from a previous marriage.  Mr Shah said that his brother-in-law had found someone else and that the family has guessed that he had re-married.  Mr Shah further explained that if a man leaves his children it must be because he has remarried and that although the family was not 100% sure at the time, they were now aware that the visa applicant’s father had re-married.

22. However, after further questioning by the Tribunal. It became apparent that the review applicant and his family do not know what happened to the visa applicant’s father and have assumed that he remarried.  Mr Shah said that several months after Ruqia’s death, his brother-in-law came home less often and was away from home two to three nights per week. He gradually progressed to more nights away per week until a time when he failed to return and disappeared.

23. Mr Shah said that the family members (including him) had their own jobs and did not have the time to look for his brother-in-law.  They did ask other people who knew his brother-in-law about his whereabouts, but no one has seen him since he left the family.  Mr Shah also explained that his brother-in-law had no family in Kabul.

24. Mr Shah told the Tribunal that neither he nor other family members made any enquiries of the Afghan National Army regarding his brother-in-law’s whereabouts.  He said that the reason for this was their awareness that the army would not give the any information about his nephew’s father and would probably not even allow them onto army property to make those enquiries.

25. Mr Shah has not had any contact with his brother-in-law since he disappeared from the family home.  To his knowledge Mr Bostan has not contacted his sons at all and has never sent them money or provided them with any financial support since he disappeared.

26. Upon Mr Sha’s departure from Afghanistan in 2014 the visa applicant and his brother went to live with other members of the extended family.  The visa applicant’s brother is currently studying economics at a university outside Kabul where he is living.  Mr Shah told the Tribunal that he had providing financial support to the visa applicant since he arrived in Australia.  He estimated that he had provided approximately AUS500 every three months to the visa applicant since late 2014.

27. Mr Shah told the Tribunal that if his nephew was granted a visa, he would live with him and his family in Melbourne and undertake tertiary studies.  Mr Shah would continue to provide financial support to his nephew until he found employment.     

28. Mr Shah said that he was in regular communicated with the visa applicant but had not returned to Afghanistan since his arrival in Australia.  This was due to the expense of travel to Afghanistan and the poor security situation in the country.

29. Pursuant to s.359AA of the Act the Tribunal invited the review applicant to comment on or respond to information in the Department’s file which appeared to contradict some aspects of the evidence given by him during the hearing.  This information was contained in a file note made regarding a telephone interview by a Departmental officer with the review applicant on 13 November 2016.  This records the review applicant explaining that his sister, brother-in-law and their sons had travelled to Mazar e Sharrif in 2005 to visit her sister’s in-laws and not a spring holiday as he suggested in his oral evidence.

30. The applicant told the Tribunal that he didn’t say this to Departmental staff and in any event his brother in law came from Oruzgan Province and had no relatives in Mazar e Sharrif.

31. Pursuant to s.359AA of the Act, the Tribunal further invited the review applicant to comment on or respond to information in the file note in the Department’s file regarding the telephone interview with him on 12 November 2016 which records him saying that after his brother-in-law disappeared and the family had not heard from him for a while, they went to his house to check on him and found that he was no longer there.  This appeared to contradict Mr Shah’s oral evidence where he said that his brother-in-law was living with his sons, Mr Shah and other members of his wife’s family, after her death and before he disappeared.

32. The applicant responded by telling the Tribunal that a father can’t leave his children, meaning that he couldn’t believe that his brother-in-law had left his children and had not returned.  Mr Shah said that no one would believe that this would occur and that he couldn’t accept that Mr Bostan had left without saying good-bye.  Mr Shah explained that he didn’t remember telling the Departmental officer that he went around to his brother-in-law’s home after he had disappeared and didn’t think that he said this.  Mr Shah told the Tribunal that his brother-in-law and nephews lived in the same house but in separate rooms.  He thought that the Departmental officer must have misunderstood him when he said that he went to check

    Evidence of visa applicant – Sayed Ahmad Ajmal

33. The visa applicant told the Tribunal that he was born on 4 June 1999 to parents Ruqia (mother) and Sayed Bostan (father).  He had an older brother Sayed and although he didn’t know his brother’s birthdate he thought his brother was maybe two years older than himself.  Mr Amjal explained that he had three uncles and an aunt.  Two uncles (including the review applicant0 were living in Australia, an uncle was living in the USA.

34. The visa applicant said that he was very young when his mother died that he was unable to recall when she died.  He was aged 10 years or less at the time.  He was aware that his mother had died in a car accident whilst the family was travelling to Mazar e Sharrif.  He didn’t remember why the family were travelling there and could not remember what happened.  Mr Amjal told the Tribunal that he couldn’t remember whether he has been hurt in the accident or been taken to hospital and had forgotten most things about it.

35. Whilst the visa applicant could not remember whether he attended his mother’s funeral, he conceded he might have done so.  He was aware that his mother was buried in Karta Sakhi and had since visited her grave.  When asked whether he had ever visited his mother’s grave with the review applicant, Mr Amjal said “maybe”.  He then explained that he said “maybe” because he couldn’t remember whether he had done so.

36. The Tribunal questioned the visa applicant about whether he had been living with his maternal uncles prior to his mother’s death.  He said that he and his parents and brother had been living independently in their own house prior to his mother’s death.  When asked whether he had ever lived with his maternal grandmother, the visa applicant replied that he could not remember but didn’t think so.  He couldn’t remember when she died, save that it was several years ago.

37. The visa applicant told the Tribunal that after his mother’s death his father lived with him and his brother at the home of his maternal family, until one day his father left without explanation or farewell.

38. The visa applicant told the Tribunal that his father disappeared a while after his mother’s death and he had not seen him or had any contact with him since then.  He said that neither he nor his brother had attempted to search for their father since his disappearance.  The reason for this was because Mr Shah had looked for his father a few times.  The visa applicant said that he was aware his father was in the Afghan National Army.  Despite this knowledge, the visa applicant had not attempted to make any enquiries of army personnel regarding his father’s whereabouts.  He said that given his uncles (including Mr Shah) had tried really hard to find his father he thought that there was no point in him undertaking his own enquiries. Mr Amjal further explained that he didn’t know whether his uncles had spoken to anyone in the army about his father, he said that he didn’t know but they might have done so.

39. The visa applicant told the Tribunal that he was currently studying for an entrance exam to university in Kabul.  He had already completed his secondary education and additional English language studies. He confirmed that Mr Shah had been providing him with financial support for over four years.  He estimated that Mr Shah had given him in excess of US4, 000 during that time.

40. After the visa applicant had completed his oral evidence, the Tribunal invited the review applicant to provide any further comments he wished to make.  He referred to the visa applicant’s evidence that before his mother’s death he lived with his parents and siblings in their own house.  The review applicant said that what the visa applicant meant was that he and his brother and father were living in their own separate rooms within the same house as the extended family.

41. For the reasons below, the Tribunal finds that the applicant visa applicant was an orphan relative of an Australian relative at the time of application and at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is met.

    Age – r.1.14(a)(i)

42. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.  In his oral evidence, the applicant told the Tribunal that he was born on 4 June 1999.  The Tribunal notes that this date is also given in the bio-pages of his Afghan passport and in his Tazkera; his date of birth is given as 1999.  The Tribunal notes that previous Departmental records indicate that the applicant’s date of birth is 31 December 2000.  However it accepts that there is usually a difference of a few months when converting dates from the Afghan calendar to a Gregorian calendar.  The Tribunal also accepts that as the difference between the two dates is only six months, it does not significantly change the visa applicant’s age.  The Tribunal finds that  r.1.14(a)(i) is met at the time of application and at the time of decision the applicant meets cl.117.221(b) in that he would continue to be an ‘orphan relative’ except that he has turned 18 years of age.

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

1. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence before the Tribunal to indicate that the visa applicant had a spouse or partner at the time of application and at the time of this decision. 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)

2. 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.

3. The visa applicant claims that the review applicant is his maternal uncle.  Apart from a photograph taken when the visa applicant was a young boy, no documentation has been provided to verify this relationship.  The review and visa applicants each gave oral evidence, attesting to the relationship, the death of the visa applicant’s mother and the living arrangements for the visa applicant before and after his mother’s death.  Based on this oral evidence and the visa applicant’s Tazkira and passport, the Tribunal accepts that the applicants are related and that the review applicant is the maternal uncle of the visa applicant. 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)

4. 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.

5. The Tribunal accepts that death certificates are not uniformly issued in Afghanistan following the death or a citizen or resident and are often issued at a later date for other purposes such as a passport application or university admission.  However, the issue of a death certificate for the visa applicant’s mother over 10 years after her death means that the Tribunal only attaches limited weight to it.  The Tribunal acknowledges that the visa applicant was a young child when his mother is alleged to have died and he has little or no recollection of the motor vehicle collision or the resulting injuries which led to her death.

6. In their oral evidence, both applicants told the Tribunal that the visa applicant’s mother was buried in a cemetery outside Kabul and described attending her funeral. Whilst the evidence of the applicants was consistent in this regard, the Tribunal was concerned about the evidence of the applicants regarding the visits made by them to the grave of the visa applicant’s mother.  Whilst the review applicant told the Tribunal that when living in Afghanistan he visited his sister’s grave on a regular basis with the visa applicant and his brother, the visa applicant said that he couldn’t remember visited his mother’s grave with the review applicant. However, despite its concerns, the Tribunal does accept the oral evidence of the applicants regarding the death of the visa applicant’s mother. 

7. The Tribunal further notes that the review applicant explained that after his sister died the visa applicant and his brother lived with the extended family which included the visa applicant’s maternal grandmother.  However, the visa applicant said that he had never lived with his grandmother.

8. The common law presumption of death is a rebuttable legal inference that in certain circumstance, after an absence of seven year, 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 [28]. Matters relevant to assessing whether a person 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.

9. The Tribunal is satisfied on the basis of the documentary and oral evidence before it that the visa applicant’s mother shows that she died in 2005 and the applicants gave evidence to this effect, the Tribunal is satisfied that the presumption of death can be inferred in relation to the visa applicant’s mother.

10. The Tribunal also accepts the evidence of the applicants regarding the disappearance of the visa applicant’s father and the fact that his family have not been aware of his whereabouts for several years.

11. The Tribunal has some concerns about the discrepancies in the evidence of review and visa applicants about the living arrangements of the visa applicant and his brother and father after his mother’s death and the visits of the review and visa applicants to the grave of the visa applicant’s mother.  However, the Tribunal is satisfied on balance that at the time of application and the time of this decision, the visa applicant’s mother was deceased and his father’s whereabouts are unknown.

12. 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)

13. 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.  The review applicant is living with relatives in Kabul, Afghanistan.  He has a brother studying at a university in another city.  He told the Tribunal that he wishes to leave Afghanistan and live in Australia with the review applicant and his family.  If the visa is granted the visa applicant pans to engage in tertiary study, qualifying as an engineer.  Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

14. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

15. On the evidence before it, the Tribunal is satisfied that the visa applicant has not been adopted by the review applicant.   Accordingly, cl.117.211(b) is not met at the time of application.

16. On the basis of the above findings, the Tribunal is satisfied that the criteria for the grant of a Subclass 117 visa are met .

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

    DECISION

18. 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.

    Amanda Mendes Da Costa
    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.