ABEBE (Migration)

[2019] AATA 1959

ABEBE (Migration) [2019] AATA 1959 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bayu Wasihun ABEBE

VISA APPLICANT:  Mr Shmoy Amare MELKAM

CASE NUMBER:  1617454

DIBP REFERENCE(S):  OSF2015/075044

MEMBER:Kira Raif

DATE:29 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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 29 May 2019 at 7:16am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – nephew of sponsor – evidence of relationship – DNA testing – not biologically related – definition of ‘parent’ – no formal adoption – customary adoption – practical barriers to undertaking formal adoptions – not reasonably practicable – death certificate of visa applicant’s parents verified – decision under review remitted

LEGISLATION
Family Law Act 1975 (Cth), ss 60H, 60HA, 60HB
Migration Act 1958 (Cth), ss 65, 359A, 357A, 376
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.221

CASES
Donnell v Dovey [2010] FamCAFC 15

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 24 August 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 Ethiopia born in August 2000. The visa applicant applied for the visa on 21 April 2015. 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. The review applicant was informed of the existence of the s. 375A certificate in response to his request for access to documents held by the Tribunal. The Department subsequently issued a s. 376 Certificate with respect to the same information. The Tribunal acknowledges the applicant’s submission of 18 October 2018 in relation to the Tribunal’s obligations under s. 359A but the Tribunal has formed the view that the information that is the subject of the Certificate is of no relevance to the review and it is also information that is not specifically about the applicant and is covered by s. 359A(4).

4. The review applicant appeared before the Tribunal on 13 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

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

6. 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.

7. ‘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. 

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

8. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

9. The delegate accepted that the visa applicant was under the age of 18 when the application was made. The Tribunal accepts the evidence of the visa applicant’s age and accepts that he was under the age of 18 when the application was made. There is nothing to suggest that the visa applicant has, or has ever had, a spouse or de facto partner.

10. The visa applicant claims to be the nephew of the sponsor. The delegate notes that the visa applicant provided no documentary evidence of his relationship with the sponsor. The delegate notes that in his own visa application the sponsor, who used a different identity to migrate to Australia, did not declare his sister Alemtsehay. The sponsor declared a different sister Abeba Desta Beyene and her date or birth was similar to the date of birth of the visa applicant’s mother. The delegate noted that there was no other probative documentary evidence of the relationship between the visa applicant and the sponsor and the delegate was not satisfied they were relatives.

11. In his submission to the Tribunal of 6 May 2019 the review applicant explains that Ms Abebe Desta and Ms Alemtsehay Desta are the same persons known by two different names. The review applicant refers to the statement from the local church in Ethiopia confirming that the sister was known by a different name after her marriage, which is common practice in Ethiopia. With respect to her date of birth, the review applicant states that the forms were completed with the assistance of another person and there was an ‘administrative error’ with respect to Ms Desta’s date of birth.

12. The Tribunal invited the review applicant and the visa applicant to undertake DNA testing to confirm their relationship. The Tribunal received the results of the test which show that the review applicant Mr Bayu Wasihun Abebe was related as half-sibling to Mr Shewitey Beyene. A further DNA test was conducted to establish the relationship between Mr Shewitey Beyene and the visa applicant. It shows it is ‘unlikely’ that Shewitey Beyene and Shmoy Amare Melkam were related as biological uncle and nephew. DNA testing between the visa applicant and his claimed siblings, the remaining visa applicants, also showed that it was unlikely that Shmoy was biologically related to his claimed siblings. On the basis of this evidence, the Tribunal is not satisfied the visa applicant is a biological relative of the sponsor or that he is the biological nephew of the sponsor, as claimed.

13. In his written and oral evidence to the Tribunal the review applicant states that the visa applicant’s parents, Alemtsehay Desta and Amare Melkam must be considered to be his parents because they accepted parental responsibility towards this child and the visa applicant was always considered to be part of this family. The review applicant submits that there was nobody else providing care and support to the child. The review applicant refers to a number of authorities which, he claims, support the argument that the term ‘parent’ can be used in circumstances where parental responsibilities have been provided. The review applicant refers to the legal definition of ‘parent’ in the Family Law Act 1975 as being natural or adoptive parents and a number of cases that considered the definition of ‘parent’. The review applicant states that despite any missing biological connection that may exist between the visa applicant and his claimed parents, Ms Beyene and Mr Melkam should be taken to be their parents for the purpose or r. 1.14 due to the strong psychological and parental bonds that existed from the time of the children’s births. However, the Tribunal does not accept that adopting parental responsibility in relation to a child is sufficient to establish a parent – child relationship for the purpose of the Migration Act. It is widely accepted that under the Family Law Act ‘parent’ means a biological or adoptive parent and does not include a person who assumes a parental role in relation to a child (see: Donnell v Dovey [2010] FamCAFC 15 at [92]).

14. Sections 60H, 60HA and 60HB of the Family Law Act provide an exhaustive definition as to who is deemed to be a parent. Relevantly, s.60HA defines a child of a de facto relationship as a biological child of both parties to the relationship, a child adopted by both parties to the relationship or by either of them with the consent of the other, or a child born as the result of an artificial conception procedure or under surrogacy arrangements. The step-relationship and the artificial conception procedures do not apply in the present case. Thus, the applicant must establish either a biological relationship of the parents and the child or an adoptive relationship. As noted above, the DNA test does not support a biological relationship between the sponsor (who claims to be a brother of the visa applicant’s mother) and the visa applicant. The DNA testing also does not support the existence of a biological relationship between the visa applicant and his claimed siblings. The Tribunal does not accept that Alemtsehay Desta and Amare Melkam are the biological parents of the visa applicant or that they are parents because they carried out parental responsibilities towards the visa applicant.

15. The Tribunal has considered whether they can be said to be the adoptive parents of the visa applicant. The Tribunal invited the review applicant’s submissions on the issue and has had regard to the written submission of 27 May 2019, which the Tribunal finds persuasive. There is no evidence, and no claims, that a formal adoption took place. The Tribunal accepts the evidence that adoption of minor children who are relatives is in accordance with the usual practice or custom, as there is a strong cultural expectations for relatives to care for orphaned children. The Tribunal acknowledges that formal adoption is provided for in the Civil Code but the Tribunal also accepts the presented country information that there were practical barriers to undertaking formal adoptions, in particular, the level of poverty and illiteracy among the population, lack of knowledge and understanding of the process, difficulty of access to formal services, etc. These considerations would have been particularly relevant at the time when the visa applicant would have been adopted. On balance, the Tribunal accepts that in the circumstances of this case, formal adoption was not reasonably practicable. The Tribunal accepts the review applicant’s evidence that there was nobody else who provide care and support to the visa applicant and that it was always assumed that the adoptive parents were his parents. The Tribunal is satisfied that the child- parent relationship between Ms Beyene and Mr Melkam and the visa applicant was stronger than his relationship with any other person. The Tribunal is satisfied that the visa applicant was customarily adopted by Ms Beyene and Mr Melkam and that he is an adoptive child of these parents.

16. The visa applicant stated on the application form that his mother Alemtsehay Desta (sister of the sponsor) and his father Amare Melkam are deceased. In support of that claim, the applicant provided a statement from the Weredi Tselemti Workers and Social Affairs Office dated 13 August 2014 stating the parents are deceased.

17. The review applicant provided additional documentary evidence to the Tribunal. These included the death certificates for the visa applicant’s adoptive parents.  The Tribunal sought to verify the death records for the visa applicant’s parents’ On 3 November 2018 the Tribunal received advice from the overseas post that the death certificates for Alemtsehay Desta and Amare Melkam were genuine. Having regard to that information, the Tribunal is satisfied that the visa applicant’s parents are dead. The Tribunal is satisfied the visa applicant cannot be cared for by his parents because each of them is dead. The visa applicant meets r. 1.14(b).

18. With respect to the best interests of the visa applicant, the Tribunal has had regard to the review applicant’s submission of 6 May 2019, as well as other written evidence provided to the Tribunal. The Tribunal accepts that the review applicant has been providing financial and emotional support to the visa applicant since his parents’ deaths, and has expressed a willingness to continue to provide such support upon the visa applicant’s entry to Australia. The review applicant provided to the Tribunal evidence of his financial capacity to care for the visa applicant and indicated that he will also provide visa applicant with accommodation and support in further education and training. The Tribunal accepts that evidence and is satisfied that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. The visa applicant meets r. 1.14(c).

19. The Tribunal finds that the visa applicant meets the requirements of r. 1.14 and is an orphan relative of the sponsor. He meets cl. 117.211 and cl. 117.221.

    Conclusion

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

    DECISION

21. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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