1417407 (Migration)

[2016] AATA 3699

1417407 (Migration) [2016] AATA 3699 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Selamawit Teweldemedhin

VISA APPLICANT:  Miss Sarom Gebregergis Teweldemedhin

CASE NUMBER:  1417407

DIBP REFERENCE(S):  OSF2014/044200

MEMBER:Lisa Lo Piccolo

DATE:1 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 01 April 2016 at 2:30pm

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 15 August 2014 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 6 May 2014. 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).

4. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because there was insufficient evidence to satisfy the delegate that the applicant is an orphan on the basis that her father is permanently incapacitated to care for her or evidence that can be verified to support claims that her mother is deceased. The delegate also found that the applicant did not meet cl.117.223 because he was not satisfied that the applicant presented sufficient proof of her identity in regards to PIC 4020(2A) and accordingly did not meet cl.117.223. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

5. The review applicant appeared before the Tribunal on 2 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. There are two issues in the present case: whether the visa applicant satisfies the definition of an orphan relative and whether the visa applicant satisfies PIC 4020(2A).  For the reasons explained below, the Tribunal has only addressed whether the visa applicant satisfied PIC4040(2A).

Has the applicant satisfied the identity requirements?

1. Clause 4020(2A) requires a visa applicant satisfy the Tribunal as to his or her identity.  PIC 4020(2A) is a ‘time of decision’ criteria. 

2. The Department relied on evidence before it to suggest that the applicant was born on 19 March 1995 which would make the visa applicant over 18 years of age at the time of the application and not eligible for the orphan relative visa. 

3. The visa applicant provided a birth certificate and a passport which was obtained on 5 March 2013 and 17 April 2013 respectively.  Both documents include the visa applicant’s date of birth as 24 January 1998.  There is no evidence before the Tribunal to indicate that the birth certificate and passport were obtained from Ethiopian authorities at any earlier date than just prior to the visa application being lodged, or by provision of any other supporting documents.  The review applicant appeared to accept at the hearing that the birth certificate was obtained by information provided by the visa applicant to the authorities.  In view of this and because of the other inconsistencies in this application, the Tribunal does not place any weight on either of these two documents as evidence of the visa applicant’s date of birth.

4. At the hearing, the Tribunal raised with the visa applicant its concern as expressed in the delegate’s decision record, that the visa applicant’s age was listed as 29 March 1995 in the review applicant’s earlier partner application.  The review applicant told the Tribunal that the date of birth provided by her in respect of her earlier visa application was incorrect.  She told the Tribunal that the application was completed by her spouse.  The review applicant conceded that she did sign the form but only checked that her personal details were correct.  She did not check that any other part of the form was correct.

5. The Tribunal raised with the review applicant the implausibility of this noting that the dates of birth for her other siblings are correct.  The review applicant said that she had given her spouse the correct dates of birth for her other siblings when he completed the form but regarding the visa applicant “she did not tell him and he included her age by guess”. 

6. The Tribunal also raised with the review applicant the contents of a further letter to the Department dated 1 April 2014 (D.f.49) and purportedly signed by her which includes the via applicant’s date of birth as 24 November 1998.  The review applicant told the Tribunal that she did not type the letter.  She said she had written the visa applicant’s date of birth as “24.1.1998”, but instead there was some confusion and the writer thought the number “1” was a number “11”.  This, she said explains why the visa applicant’s date of birth is listed as 24 November 1998 and not 24 January 1998 in that letter to the Department.

7. The Tribunal does not accept the explanations provided by the visa applicant for these errors.  In relation to her subclass 309 application, it seems implausible that the review applicable would provide information to her spouse regarding each of her other siblings but not tell him when the visa applicant was born such that he was required to “guess”.  Even if this did occur and she did omit to tell her, there is also no good reason why the spouse could not have asked the review applicant for the correct information rather than guessing.  The Tribunal also does not accept that if she did check the form that she did not check the accuracy of all the information she provided to the spouse.  It makes no sense. 

8. In addition, even though the Tribunal accepts the possibility that the error in the letter dated 1 April 2014 may have been as a result of the writer confusing the number “1” with the number “11”, this does not assist to resolve the Tribunal’s concerns expressed below regarding the identity of the visa applicant and her date of birth.    

9. The Tribunal notes that the review applicant has presented additional documentation to the Tribunal in support of the visa applicant’s identity and age to the Tribunal.  In particular, she has provided a document entitled “transfer letter” from Tadlech Hailu Secondary School.  That letter is dated 1 April 2008 Ethiopian Calendar (E.C) which is 10 December 2015 in the Gregorian calendar.  The letter appears to relate to an earlier period as it refers to the academic year 2006 E.C wherein the visa applicant was moving from Grade 9 to Grade 10.  Above the word age are the words “Date of birth 24 Jan 98”.

10. An Ethiopian General Secondary Education Certificate dated “2014 (2006 E.C)” was also provided, as was a letter dated 28 March 2008 E.C.  The latter document is dated 3 December 2015 in the Gregorian calendar.  Both documents were submitted to the Tribunal on 14 January 2016.    

11. A letter from the Principal of Tadelech Hailu Secondary School dated 29 July 2014 was also submitted to the Tribunal.  That letter certifies that the visa applicant is enrolled at the school.

12. In addition, a photocopy of an Infant Immunisation card has been submitted.  This card lists a number of vaccines and dates that they were administered to an infant, as well as 4 other “next appointment dates”.  The card does not include the name of the infant, although it does include the date of birth as “16/05/1990”.

13. The new evidence submitted to the Tribunal falls into two categories.  The first, are letters which have been obtained after the date of the visa application and at the request and presumably the instruction of the applicants.  None of these documents predate the visa applicant’s migration application to Australia where she states that the visa applicant was born on 29 March 1995, or postdate the migration application but pre date this application.  The second is the copy of the immunisation record which purports to pre date the review applicant’s migration application.  This copy document is not certified and does not contain sufficient information to enable the Tribunal to be satisfied that it is a copy of the visa applicant’s infant immunisation record.

14. Accordingly, having closely examined each of the documents individually and as a whole, at the time of this decision, and based on the available evidence, the Tribunal is not satisfied that the identity of the visa applicant is Miss Sarom Gebregergis Teweldemedhin born 24 January 1998.  Claims that the visa applicant was born on 24 March 1998 seem to have occurred in relation to the visa application and in order that she may meet the age requirement for the grant of visa.

15. The visa applicant does not meet cl.4020(2A).  As a result the visa applicant does not satisfy cl.117.223.

16. 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.

17. The Tribunal notes that the Department went on to consider the issue of whether the visa applicant satisfied cl.117.221.  In circumstances where the Tribunal is not satisfied that the visa applicant meets cl.4020(2A) and therefore satisfies cl.117.223, the Tribunal has not gone further to consider the balance of the subclass 117 criteria.

DECISION

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

Lisa Lo Piccolo
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.