Zafari (Migration)

[2018] AATA 4822

Zafari (Migration) [2018] AATA 4822 (16 October 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Hussain Zafari

VISA APPLICANT:  Ms Maryam Zafari

CASE NUMBER:  1701695

HOME AFFAIRS REFERENCE(S):           2016/036843 OSF2016/036843

MEMBER:John Billings

DATE:16 October 2018

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 criterion in cl.101.211(1)(c)(i)(A) of Schedule 2 to the Regulations.

Statement made on 16 October 2018 at 5:39pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – biological child – discrepancy in UNHCR Resettlement Registration Form – DNA evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2 cl 101.211

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 and Border Protection on 29 November 2016[1] to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

   [1] The primary decision is dated 29 November though the notification letter is dated 22 November 2016. 

2. The visa applicant, Ms Maryam Zafari (“Maryam”), applied for the visa on 10 July 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211 and cl.101.213 which require, among other things, that the visa applicant be the “child” of the sponsor as that term is defined in s.5CA of the Act.

4. At the time of the delegate’s decision there was no DNA evidence.  There is now DNA evidence that establishes that Maryam is the child of the review applicant, the sponsor, Mr Zafari: see below. 

5. The delegate refused to grant the visa on the basis that cl.101.211 and cl.101.213 were not met.  For the following reasons the delegate was not satisfied in relation to claims that Maryam is the biological child of Mr Zafari.  The delegate referred to an application for Class XB Humanitarian visas by Mr Zafari and other family members and to Mr Zafari’s UNHCR (United Nations High Commissioner for Refugees) Resettlement Registration Form.  The delegate noted that it had been “consistently declared” in the Class XB visa application and UNHCR Resettlement Registration Form that Mr Zafari and his wife had two sons and two daughters.  The daughters, named there, did not include Maryam.  The delegate commented that the appearance of Maryam in passport and tazkera photos was of an older person.  The delegate further noted that the tazkera was issued in 2016 and that “no historic evidence of identity” had been provided.  Finally, the delegate noted the eleven year gap between Maryam and the person claimed to be her next eldest sibling.  The delegate commented that this was “unusually large and not consistent with country information about [A]fghan family norms, where siblings are born in close succession”. 

6. Mr Zafari applied for review on 1 February 2017.  He provided a copy of the primary decision to the Tribunal. 

7. Mr Zafari was represented in relation to the review by his registered migration agent.

8. There was no hearing.  On 28 May 2018 the Tribunal wrote to Mr Zafari pursuant to s.359(2) of the Act inviting him to provide information in support of his claims that Maryam is his child and that her date of birth is as stated in the visa application.  The deadline was 12 June 2018.  There was no response on or before that date but on the following day, 13 June, a statement in support of the application was submitted.  In the circumstances, s.359C applies and pursuant to s.360(3) Mr Zafari is not entitled to appear before the Tribunal.  The Tribunal has no power to permit him to appear.  A hearing that had been scheduled for 14 June was therefore cancelled. 

9. Mr Zafari is a 70 year old national of Afghanistan.  He and his wife, Sadiq Amina, aged 64 years, his daughter, Sadiqa Zafari, aged 46, and other relatives were granted Class XB Humanitarian visas in October 2013 and arrived in Australia in February 2014. 

10. According to the visa application and material in support, Maryam is a 19 year old national of Afghanistan.  She is unmarried.  She lives in Pakistan.  

11. The Department’s file includes a copy of the relevant pages of Maryam’s passport and tazkera both issued in 2016; a photograph of Mr Zafari holding a young child; and money transfer receipts (from Mr Zafari to Maryam) in 2015 and 2016.

12. Material submitted to the Tribunal includes the statement submitted on 13 June 2018 and medical and psychological reports made in 2017 concerning Mr Zafari and his wife.  

13. The statement submitted on 13 June 2018 is ostensibly by Mr Zafari.  The statement is in English.  It is unsigned and undated.  In essence it is stated that it took Mr Zafari and his family about three and a half years to obtain registration with UNHCR.  They had about nine interviews that were very stressful and it was difficult for him to understand because of a hearing problem and there were many people around who were talking and distracting him.  The statement appears to add that it took hours to travel to the place where the interviews were conducted and travelling was dangerous.  The interpreters spoke different dialects.  Asked about his family he said that he had two daughters in Afghanistan: one (Masouma[2]) was living there and the other (Maryam) went to visit and look after Masouma when she was unwell.  After Maryam returned to Pakistan the family went to the “UN office” to inform them and ask that she be included in their case but this was refused and they were told that the case was closed.  All they could do was apply to be reunited with Maryam after they arrived in Australia.  This was heartbreaking but they had no choice.  After they arrived in Australia they were disadvantaged because they were sick and had financial problems (making it difficult to sponsor Maryam) and they had no one to show them how to apply.  They were (finally) referred for advice and the application was made.  They wanted to show that they had not been misleading the (Australian) government.  The statement then referred to aspects of Mr Zafari’s physical and mental health. 

    [2] The material includes different spellings including Masooma and Masouma. 

14. Notwithstanding that Mr Zafari lost his entitlement to a hearing, on 15 June 2018 the Tribunal issued an invitation under s.359A of the Act, having inspected the Department’s file in relation to the Class XB Humanitarian visas including UNHCR Resettlement Registration Form held on that file.  At the same time gave Mr Zafari the opportunity to provide any further evidence or submissions, including any comments on the matters identified by the delegate mentioned above.  In the s.359A invitation the Tribunal gave the following particulars of information.

    You and your wife, Sadiq Amina, and your daughter, Sadiqa Zafari, made claims to UNCHR … and were interviewed by one or more UNHCR officers in or about January 2013.  You and they applied for Class XB Humanitarian visas in May 2013.  In connection with the applications for Class XB Humanitarian visas Sadiqu Zafari was interviewed by an officer of the Australian Department of Immigration in June 2013.  The UNCHR Resettlement Registration Form, the visa application form and the record of interview record very detailed information about your family and its history that was evidently provided by you and your wife and Sadiqa Zafari through interpreters to various officers over several months, yet the records contain no reference to Maryam Zafari.  In contrast, the UNCHR Resettlement Registration Form indicates that you and your wife had four children – two sons who are deceased and two daughters (Sadiqa Zafari and Masooma Zafari).

15. Mr Zafari made a detailed statement in response that was provided to the Tribunal on 22 June 2018.  In the circumstances, it is not necessary to set out the whole of the response.  The response reiterated a number of the matters set out in the statement submitted on 13 June 2018.  The response concluded with a request for the Tribunal to allow the family to prove the relationship by DNA testing. 

16. The Tribunal decided to invite Mr Zafari to provide DNA evidence of his relationship with Maryam.  The Tribunal has now received a report by Genomic Diagnostics dated 26 September 2018.  According to the report the relative chance of paternity is 99.99995%.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The criterion in cl.101.211 requires among other things that at the time of application, the visa applicant is a ‘dependent child’. This requirement must continue to be met at the time of decision, or if it is not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a). 

19. To be a “dependent child” of Mr Zafari Maryam must be his child: see the definitions of “dependent child” in r.1.03 and of “child” in s.5C of the Act.  Clause cl.101.211(1)(c)(i)(A) requires the visa applicant to be the child (other than an adopted child) of the sponsor. 

20. The delegate was not satisfied that Maryam is the child of Mr Zafari.  The delegate expressly indicated in the primary decision that she did not assess any of the other matters concerning the question of “dependency”. 

21. The Tribunal mentions now that the President’s Direction entitled Conducting Migration and Refugee Reviews includes the following, at paragraph 8.2: “As a general rule, where the Minister … or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.” 

22. In the present case the issue for the Tribunal therefore is whether Maryam is the child of Mr Zafari. 

23. On the basis of the report by Genomic Diagnostics dated 26 September 2018 the Tribunal is satisfied that Maryam is the biological child of Mr Zafari.

24. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa, with the direction that that Maryam meets the criterion in cl.101.211(1)(c)(i)(A) of Schedule 2 to the Regulations.

    DECISION

25. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the criterion in cl.101.211(1)(c)(i)(A) of Schedule 2 to the Regulations.

    John Billings
    Senior Member