TAHIR (Migration)

[2018] AATA 5375

TAHIR (Migration) [2018] AATA 5375 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MOURAD ALI TAHIR

VISA APPLICANTS:  Ms Badriya Ali TAHIR
Ms LENSA ALI TAHIR

CASE NUMBER:  1609482

DIBP REFERENCE(S):  2014044641

MEMBER:Kira Raif

DATE:19 December 2018

PLACE OF DECISION:  Sydney

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 19 December 2018 at 9:21am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – evidence of ages of the applicants – hospital birth records – evidence of parents’ deaths – providing financial and emotional support – guardianship arrangements – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65,
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; r 1.14

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 2 June 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Ethiopia. They applied for the visas on 3 November 2014. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 12 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants and the review applicant’s employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Relevant law

4. 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.

5. 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.

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

   Are the visa applicants orphan relatives of an Australian relative?

7. The visa applicants claim to be step-sisters of the review applicant, sharing the same father, and they state that both of their parents are deceased. The review applicant provided to the Tribunal copies of the primary decision records which contain the following information.

8. The sponsor entered Australia in April 2005 as an Orphan Relative and acquired the Australian citizenship in April 2011. From 2012 he proposed six applicants, other than the visa applicants, for humanitarian visas. The delegate found it unusual that two years after the sponsor became aware of the existence of his half-siblings he would be sponsoring other people for humanitarian visas and not his siblings.

9. The primary decision record indicates that the visa applicants were interviewed in November 2015. The visa applicant stated that their parents were secretly married and the half-brothers hated their mother and that is the reason the sponsor did not declare the half-siblings in his dealings with the Department. The visa applicants stated that the sponsor never knew about them. The visa applicants stated that a friend knew about the secret marriage and following the death of their father, the friend contacted the sponsor who in turn contacted the applicants. The delegate pointed out that if the marriage was secret, there was no reason for the half-brothers to hate the visa applicants’ mother.

10. With respect to the visa applicants’ ages, the delegate noted that the visa applicants produced passports issued in August 2013 but such documents are issued on the basis of an applicant’s statement. The delegate noted that the applicants were requested to provide evidence relating to their age, including school records, but failed to do so. The delegate was not satisfied the visa applicants were under the age of 18.

11. With respect to their relationship with the sponsor, the visa applicants claim they shared the same father who was secretly married to their mother and nobody in the family knew of their existence until 2011. While the DNA testing could confirm the relationship, the delegate did not pursue that option because the delegate was not satisfied other requirements were met.

12. With respect to the visa applicants’ orphan status, the visa applicants claim that their father died on 2 May 2000 due to illness and their mother died on 31 March 2001 due to illness and they were buried in Seid Abdella Burial place. The visa applicants provided a statement from an Administration office and a death certificate relating to the mother issued in September 2014 and there is no other evidence of the father’s death. The review applicant told the Tribunal there are no burial records relating to his father.

13. The visa applicants provided with the application evidence that guardianship has been granted to the review applicant. However, the Tribunal not satisfied that the grant of the guardianship can constitute probative evidence of the parents’ deaths or incapacity, particularly as the primary decision record indicates that it was issued on the basis of a statutory declaration given to the court. While the Tribunal accepts that the review applicant has been providing financial support to the visa applicants, the Tribunal does not consider that the guardianship arrangements evidence the parents’ deaths.

14. The review applicant provided a written submission to the Tribunal outlining the reasons why he believed the Departmental decisions to be incorrect. As the Tribunal conducts a review de novo, the Tribunal considers such claims to be unhelpful.

15. The review applicant stated in his written submission the Tribunal that his father used to have secret relationships and he was not aware of the existence of his half-siblings. The review applicant explained his previous sponsorships and the delay in the present sponsorship. The review applicant noted that he had offered to undertake DNA testing to confirm his relationship with the visa applicants and claims he was not given the opportunity to present further evidence.  The review applicant outlines the difficulty with obtaining documents in Ethiopia. With respect to the orphan relative status, the review applicant noted that the death certificate of their common father and of the visa applicants’ mother has been submitted and he was not informed about his father’s relationship until June 2011. The review applicant stated the visa applicants are under 18 as is evidenced by their birth certificates. The review applicant referred to the best interests of the children. He provided to the Tribunal evidence of several money transfers.

16. In oral evidence to the Tribunal, the review applicant stated, with respect to the children’s age, that in Ethiopia birth records are not required and nobody applies for birth records until they are required for something, so birth records are never issued at the time of birth. The review applicant said that where children are born at home, the parents make a record but the visa applicants were born in a hospital, so when they made the application for the birth certificate, they provided the hospital records. The review applicant said the hospital is no longer operating and no longer keeping any records. He was not sure when the hospital stopped operating.

17. The review applicant said his father passed away through sickness in 2000. When asked to describe the sickness, the review applicant said he had symptoms of cold and sharp pain. He was not sure what his father had been diagnosed with, stating he was young at the time. The review applicant said that his father died in hospital and before the death certificate was issued, the authorities have checked with the hospital but since then the hospital has closed and these records are no longer available. The review applicant said the local authorities would have checked with the local council. Following the hearing, the review applicant provided to the Tribunal his father’s death certificate. It is odd that the review applicant was able to produce his father’s death certificate within days of the Tribunal hearing when he was unable to obtain and provide that document for several years since the application was made. The applicant states in his submission to the Tribunal of 14 June that the hospital is now operational again.

18. The Tribunal arranged for the verification of the birth and death records provided by the review applicant. Ton 16 August and 18 December 2018 the Tribunal received advice from the overseas post that the two birth certificates issued by the hospital in relation to the visa applicants, and their parents’ death certificates, are genuine.

19. Having regard to that information, the Tribunal accepts that the visa applicants were born in 1997 and 1998 respectively. As the application was made in 2014, the Tribunal finds that they were both under the age of 18 when the application was made. The Tribunal is satisfied they meet r. 1.14(a)(i). There is nothing to suggest that the visa applicants have spouses or de facto partner. They meet r. 1.14(a)(ii).

20. The delegate was not satisfied that the visa applicants were relatives of the sponsor. The review applicant’s explanation to the Tribunal is that he was unaware of their existence earlier and made arrangements to support the children once he became aware of their circumstances. He also arranged for the formal guardianship. On balance, the Tribunal accepts the review applicant’s evidence concerning his relationship with the visa applicants and accepts that they are his relatives. The Tribunal finds that the visa applicants meet r. 1.14(a)(iii).

21. The death certificates for the visa applicants’ parents have been verified as genuine. The Tribunal finds, having regard to this evidence, that the visa applicants cannot be cared for by either parent because each of them is dead. The Tribunal is satisfied r. 1.14(b) is met.

22. The review applicant provided to the Tribunal evidence of having provided financial and emotional support to the visa applicants. He has undertaken to continue to provide such support. Guardianship arrangements have been made to reflect the review applicant’s willingness to provide necessary support and care for the children. The Tribunal finds that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the children. The visa applicants meet r. 1.14(c).

23. The Tribunal finds that the visa applicants meet r. 1.14 and are orphan relatives of the sponsor. They meet cl. 117.211 and cl. 117.221.

    Conclusion

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

    DECISION

25. 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.

    Kira Raif
    Senior Member