Abdrehman (Migration) [2021] AATA 4597 (12 November 2021)

Last Updated: 10 December 2021

Abdrehman (Migration) [2021] AATA 4597 (12 November 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mrs Hidra Muhammed Abdrehman

VISA APPLICANTS: Ms Hanan Hamid Birhan
Master Hamza Hamid Birhan

CASE NUMBER: 1835454

HOME AFFAIRS REFERENCE(S): 2017023237 OSF2017023237

MEMBER: M. Edgoose

DATE: 12 November 2021

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 12 November 2021 at 2:16pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – mother’s unknown whereabouts – tracing enquiries with the Red Cross – visa applicants not adopted – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

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 Home Affairs on 8 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 25 July 2017. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211.

4. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.

5. The review applicant appeared before the Tribunal on 12 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mustofa Ahmed the spouse of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

6. The review applicant was represented in relation to the review.

7. Although suspended by the Office of the Migration Agents Registration Authority Mr Tedla Wanaw has continued to make submissions to the Tribunal on the review applicant’s behalf. On 29 September 2021 the Tribunal received one email submission from Mr Tedla Wanaw on behalf of the review applicant which included a number of attachments. The email signature said Mr Tedla Wanaw, representative. Mr Tedla Wanaw made a further submission to the Tribunal on 11 November 2021. Given this it is clear to the Tribunal that Mr Tedla Wanaw has continued to represent and make submissions on the review applicants behalf although being suspend by the Office of the Migration Agents Registration Authority. Mr Tedla Wanaw’s actions while suspended have had no bearing on the outcome of this matter.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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.

10. ‘Orphan relative’ is defined in reg 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): reg 1.03. In the present case, Mrs Hidra Muhammed Abdrehman, is the relevant Australian relative.

11. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is not an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is not met, and does not continue to be met at the time of decision.

No parental care – reg 1.14(b)

12. 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.

13. The Tribunal has given regard to the review applicants Statutory Declaration dated 29 September 2021 that mentioned that the visa applicants father had passed away in 2004 and that her sister, the visa applicant’s mother had left in 2009 for Saudi Arabia for employment and stayed for about two years before she went missing. The visa applicant’s mother had been employed as a domestic worker and remained in contact with the family for two years. The review applicant claimed that since 2011 she, the visa applicant’s and her family in Ethiopia have not heard from her. At hearing the review applicant confirmed to the Tribunal that this is correct. She further mentioned that she has supported the visa applicant’s financially and that she is the mother of four children in Australia. The review applicant mentioned that she has returned to Ethiopia in November 2018 until February 2019 and visited the visa applicants. At hearing the review applicant confirmed to the Tribunal that the information contained within the Statutory Declaration is true and correct. The Tribunal acknowledges that the review applicant has provided a detailed statutory declaration however there is no physical evidence to support the claim that the visa applicants mother is missing and of unknown whereabouts. For this reason, the Tribunal gives little weight to the statutory declaration.

14. The Tribunal accepts that the review applicant has made a number of money transfers between 2019 and 2021 to the visa applicants.

15. The delegate found that the applicants had not submitted a missing person’s report in regard to attempts to search for the visa applicant’s mother from the Ethiopian Embassy in the Kingdom of Saudi Arabia or from any other missing persons’ tracing agency. Therefore, the delegate found there was insufficient evidence to support that the visa applicant’s mother was missing. At hearing the review claimed that she had submitted a missing person report to the Embassy and a copy of this report to the Department and to the Tribunal however no such report was located. The Tribunal gives little weight to the claim that review applicant had submitted a copy of the missing persons report and no copies of this report was found on either the Department or the Tribunal files. The Tribunal considers the findings of the delegates to be credible.

16. The day prior to the scheduled hearing the Tribunal received a submission from the review applicant’s representative, Mr Tedla Wanaw. The submission included an apparent translated police search letter dated 17 November 2018 and illegible letter dated 16 September 2020 that had been translated into English. The Tribunal notes that the translated version of the letter had not been endorsed or translated by an official translator. In relation to the apparent translated letter from the police the Tribunal has genuine concerns about the validity of his letter given that the original non translated version was not submitted. At hearing the review applicant said she was not sure what the letter was about although it had only been submitted one day before the hearing. She then said it was a letter from her brother and that she could get it re translated. The Tribunal informed the review applicant that it would not be granting her further time to have the letter translated again. For this reason, the Tribunal places little weight on the submissions.

17. At hearing the review applicant told the Tribunal that her brother has spent almost 10 years looking for her sister, the visa applicant’s mother. The review applicant informed the Tribunal that she had spoken to the Red Cross in Melbourne regarding her sister in 2014 however she was not able to provide them the required information for them to search for her sister. Since 2014 the review claims to have contacted the Red Cross every six months regarding the whereabouts of her sister but has faced the same issues since 2014 of not being able to provide the required information. Although the review applicant claims to have contacted the Red Cross the review applicant has not submitted any physical evidence to support this claim. Given the lack of evidence, the Tribunal is not satisfied at time of this decision that the visa applicant’s mother is either dead, permanently incapacitated or of unknown whereabouts.

18. Mr Mustofa Ahmed, the spouse of the review applicant told the Tribunal that he and the review applicant are supporting the visa applicants financially. He informed the Tribunal that he first met the visa applicants in person in 2011 while in Ethiopia. Mr Ahmed further mentioned that he is worried about the visa applicant’s due to the current situation in Ethiopia and that they last visited them in late 2018 for several months. He said to the Tribunal that his own children in Australia would like for the visa applicants to come to Australia to be with his family and that his wife the review applicant has become very stressed by the situation. The Tribunal considers that Mr Ahmed was a credible witness.

19. Given the limited evidence, both oral and physical, the Tribunal is not satisfied that reg 1.14(b) has been met in this matter.

20. Accordingly, reg 1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

Has the applicant been adopted by the Australian relative?

21. 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.

22. There is no evidence before the Tribunal that the visa applicants have been adopted by the Australian relative. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

23. Given the findings above, cl 117.211 is not met.

24. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. It follows that cl 117.221 is not met.

25. 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

26. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

M. Edgoose
Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.14 Orphan 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.