Shakila (Migration)

[2019] AATA 1368

Shakila (Migration) [2019] AATA 1368 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs. Shakila

VISA APPLICANT:  Mr SAFAR ALI AHMADI

CASE NUMBER:  1622004

DIBP REFERENCE(S):  OSF2016/036701

MEMBER:Kira Raif

DATE:4 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 04 January 2019 at 10:07am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – evidence of ages of the applicants – widow as financial sponsor – evidence of parents’ deaths – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, cls 117.211, 117.221; rr 1.03, 1.14

CASES

Hasran v MIAC [2010] FCAFC 40

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 30 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 is a national of Afghanistan, born in October 1998. He applied for the visa on 21 March 2016. 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 the visa applicant was an orphan relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. On 20 November 2018 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting her to provide comments on information that it considered would be part of the reason for affirming the decision under review. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 4 December 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The review applicant has not provided the comments within the prescribed period and no extension has been sought or granted within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

5. On 10 December 2018 an officer of the Tribunal contacted the review applicant’s representative, Ms Marion Le, concerning the fact that no response was received to the Tribunal’s invitation. The representative wrote to the Tribunal on 11 December 2018 seeking more time to provide the review applicant’s comments. On 12 December 2018 the Tribunal informed the representative that any further submissions or materials must be received by the Tribunal by 2 January 2019 and that the Tribunal would proceed to the decision after that date. To date, no further submissions or comments have been received from the review applicant.

   Relevant law

6. 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.

7. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.

8. ‘Orphan relative’ is defined in r.1.14 of the Regulations. 

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

9. The review applicant provided to the Tribunal a copy of the primary decision record which sets out the delegate’s reasoning.

10. The delegate noted that as proof of his age, the visa applicant provided his Afghan passport which records his date of birth as 29 October 1998 and a tazkera which states that he was 14 years old in 2012. The delegate refers to the applicant providing a different date of birth in his previous visa application, stating he was born in 1999, but in either case, he was under the age of 18 when the application was made. Having regard to the applicant’s passport and tazkera, as well as the information provided in the previous visa application, the Tribunal is satisfied that the visa applicant was under the age of 18 when the application was made.  The applicant meets r. 1.14(a)(i).

11. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is nothing to suggest that the visa applicant has a spouse or de facto partner and the Tribunal is satisfied that he does not. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

12. 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.

13. The visa applicant claims to be a brother of the sponsor. The delegate notes that the visa applicant was included in the sponsor’s own visa application made in 2013 and also that he had good knowledge of the sponsor’s circumstances during his interview with the Departmental officer in November 2016. The Tribunal is therefore satisfied that the visa applicant is a brother and a relative of the sponsor. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

14. 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. The applicant stated in his application that his father Hassan Ali and his mother Bakhtawar are both deceased. The primary decision record indicates that the visa applicant was interviewed in November 2016 and he was required to provide information about his parents’ deaths. The applicant stated that he did not know as he was young when his parents died and his sister did not want to upset him and did not give him any information. The applicant stated that after his parents’ deaths, he was residing with the family of his sister’s husband and was financially supported by his sister.

15. The delegate noted that it was unusual for a widow wife to provide financial support, or accept responsibility for her partner’s family and the delegate considered the possibility that the visa applicant resided with his father and siblings. The delegate also noted the considerable age gap between him and the sponsor while the claimed brothers in law and sisters in law of the sponsor filled the age gap between the visa applicant and the sponsor. The delegate notes that in their previous visa application, the applicant and the sponsor declared their mother’s name as Amina while the visa applicant now claims his mother is Bakhtawar. When asked to explain, the visa applicant said he did not know the reason and did not know anyone named Amina.

16. The visa applicant provided with his application a ‘confessor statement’ attesting to the deaths of Mr Hasan Ali in 2002 and Ms Bakhtawar in 2004. The statement does not record the circumstances of, or the reasons for, the deaths. No formal evidence of deaths has been presented with the application. As a result, the delegate was not satisfied the visa applicant’s parents were deceased.

17. In April 2017 the Tribunal received an allegation. The allegation refers to the visa applicant’s full name, date of birth and passport number, which would suggest a good knowledge of the visa applicant’s circumstances. The allegation indicates that the visa applicant’s parents and siblings are alive and reside with him currently. The allegation states that applicant’s father is Hasan Ali and provides his phone number. It states the applicant’s mother is Bakhtaawr. It also identifies the applicant’s siblings and provides their telephone numbers and address. The Tribunal wrote to the review applicant pursuant to s. 359a seeking her comments on this information but, as noted above, the review applicant did not provide her comments in response to the Tribunal’s invitation.

18. The Tribunal places considerable weight on the allegation because of its detailed nature and apparent knowledge of the visa applicant, including his name, date of birth and passport number. It suggests that the writer has some familiarity with the visa applicant’s circumstances. The allegation suggests that the visa applicant’s parents are alive and that he lives with his parents.

19. The Tribunal is also mindful of the concerns set out in the primary decision record, including the visa applicant’s very limited knowledge about his parents’ claimed deaths. Even if the visa applicant was very young when his parents allegedly passed away, he was close to 18 years old when he was interviewed and there is no apparent reason why he could not have acquired knowledge about circumstances of his parents’ claimed deaths. The Tribunal also places weight on the very limited documentary evidence of the parents’ deaths. There are no official records other than the ‘confessor statement’ which has very limited information. The totality of these concerns, when taken together, raise serious doubts about the visa applicant’s claims concerning his parents’ deaths.

20. Overall, the Tribunal is not satisfied on the evidence before it that the visa applicant’s parents have died. The Tribunal is not satisfied that the visa applicant cannot be cared for by his parents because each of them is dead, permanently incapacitated or of unknown whereabouts. He does not meet r. 1.14(b). The Tribunal is not satisfied that the visa applicant is an orphan relative of an Australian relative and he does not meet cl. 117.211 and cl. 117.221.

21. There is nothing to suggest that the visa applicant is a child, or an adopted child, of the sponsor. He does not meet the requirements for the grant of the Subclass 101 and Subclass 102 visas.

    Conclusion

22. 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

23. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Kira Raif
    Senior Member