ABEBE (Migration)

[2019] AATA 1955

ABEBE (Migration) [2019] AATA 1955 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bayu Wasihun ABEBE

VISA APPLICANT:  Mr Berhe Amare MELKAM

CASE NUMBER:  1617447

DIBP REFERENCE(S):  OSF2015/075046

MEMBER:Kira Raif

DATE:28 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 28 May 2019 at 3:09pm

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 – half-uncle of visa applicant – guardianship order – death certificate of visa applicant’s parents verified – sponsor’s credibility – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.221

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 January 2002. 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 through the Access to Documents request.

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 his sister was known by a different name after her marriage, which is common practice in Ethiopia. With respect to the sister’s 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 there is a ‘strong’ support for the proposition that Shewitey Beyene and Berhe Amare Melkam are related as biological uncle and nephew. The applicant submits that Shewitey Beyene is the full biological uncle of the visa applicant.

13. Having regard to these results, the Tribunal is satisfied, on balance, with the visa applicant’s claim that the sponsor is his half-uncle. The Tribunal finds that the visa applicant is a nephew, and a ‘relative’ of the sponsor. The Tribunal finds that the visa applicant meets r. 1.14(a).

14. With respect to his orphan status, the visa applicant stated on the application form that his mother is Alemtsehay Desta (sister of the sponsor) and his father is Amare Melkam and that both 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.

15. The visa applicant presented with his application a Court order granting guardianship to the sponsor. The Tribunal acknowledges that evidence but does not consider that the guardianship order establishes that the visa applicant’s parents are deceased. Guardianship may be granted for any number of reasons and not only because the child’s parents are deceased, permanently incapacitated or of unknown whereabouts. The Tribunal acknowledges that the Court Order refers to the visa applicant’s parents being deceased but the delegate notes that the evidence of deaths was in the form of statements or declarations and that no death certificates were presented to court despite their availability. 

16. The primary decision record indicates that the sponsor used a different identity in his own application made in 2007 and in 2012 he sponsored another person as his biological son, but DNA testing did not support that relationship. In the delegate’s view, that raised concerns about the sponsor’s overall credibility.

17. The review applicant provided additional documentary evidence to the Tribunal. It included baptismal certificates for the children and the death certificates for their parents.  

18. 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).

19. 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).

20. 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

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

    DECISION

22. 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