Alemayehu (Migration)

[2018] AATA 4992

Alemayehu (Migration) [2018] AATA 4992 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abusha Alemayehu

VISA APPLICANT:  Ms Hiwot Mesekr

CASE NUMBER:  1616153

DIBP REFERENCE(S):  OSF2014044631

MEMBER:Kira Raif

DATE:24 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2018 at 4:17pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – uncle/ niece relationship – cannot be cared for by parents – mother’s whereabouts unknown – bogus documentation – documentation contradicts claims about father – no reliable evidence of applicant’s age – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.14 Schedule 2 cls 117.211, 117.211

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 on 25 July 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 December 1997. She applied for the visa on 3 November 2014. The delegate refused to grant the visa because the applicant did not meet cl.117.221 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 appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic 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 decision under review should be affirmed.

   Relevant law

4. 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.

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

6. ‘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?

7. The visa applicant claims to be a niece of the review applicant.

   The primary decision

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that on the application form 47CH, the visa applicant stated that her mother was Yemeserach Belete Duba and she was resident in Ethiopia. The visa applicant had not listed the name of her father. On the sponsorship form 40CH the sponsor identified the visa applicant’s mother as Hiwot Getachew Tameru and stated that her whereabouts were unknown. The sponsor identified the visa applicant’s father as Getachew Tamer Yousef and stated that he was permanently incapacitated. The visa applicant provided with the application her birth certificate issued in July 2014 which identifies her father as Abusha Mesekr and her mother as Negatwa Belete. 

9. In light of these inconsistencies, the delegate wrote to the visa applicant seeking her comments and further evidence concerning her parents. The visa applicant replied to the delegate by providing an extract from the application form in which she stated that her father was Dereje Alemayehu and was missing and she stated that her mother was unknown.

10. The primary decision record indicates that in 2003 an application for a Class XB visa was made by Etsegenet Mekonen. The review applicant was included in that application as a dependent and the spouse of the primary visa applicant. In that application, the review applicant declared six siblings, Dereje, Yemisrach, Yonas, Natnael, Abel and Hiwot. The delegate noted that in his own application, the review applicant referred to his brother Dereje and stated his date of birth as 1985.

11. The delegate noted that the review applicant identified a sister with the same name as the visa applicant, Hiwot Mesekr and the review applicant explained that it was a ‘pure coincidence’. The delegate also noted that the person identified as the visa applicant’s father, Dereje, was said to have been born in 1985 while the visa applicant claims to have been born in 1997, which appears to be implausible.

12. The delegate invited the parties to undertake DNA tests to confirm their relationship. In March 2015 the DNA results were received indicating it was ‘likely’ that the visa applicant and the review applicant shared an uncle–niece relationship and the delegate accepted they were relatives.

13. The delegate considered the visa applicant’s age. She claims to have been born in December 1997. In support of that claim she provided a birth certificate issued in July 2014 and a copy of her passport also issued in 2014. Both documents were issued shortly before the application was made and appear to have been obtained for the purpose of the application. The visa applicant also provided her school records and the delegate noted inconsistencies in the recording of the visa applicant’s age in those records with the birth certificate and passport. The delegate also noted that the sponsor declared Hiwot Mesekr as his sister in his own visa application and gave her date of birth as 1996. The delegate noted that despite being requested to do so, the parties refused to undertake the DNA test to establish a sibling relationship but preferred the DNA test to establish an uncle–niece relationship. The delegate was not satisfied the visa applicant was under the age of 18 when the application was made.

14. The delegate has also considered whether the visa applicant was an orphan. In his declaration to the delegate, the review applicant states that he is the brother of the visa applicant’s father, Dereje Alemayehu. The father suffered chronic mental health problems and has been missing for over 10 years. The whereabouts of the visa applicant’s mother have been unknown since she left the child with the grandparents when the child was 10 days old and never came back.

15. The delegate noted that the visa applicant stated different names of her mother in her visa application form 47CH (Yemeserach Belete Duba), the birth certificate (Negatwa Belete) and in response to the delegate’s request for information where she referred to her mother as ‘unknown’. The delegate also notes that the visa applicant stated in the application form that her mother was resident in Ethiopia while she subsequently stated that her whereabouts are unknown. The delegate was not satisfied that the visa applicant was unaware of her mother’s identity and whereabouts.

16. The delegate also noted that the visa applicant did not state her father’s name in her visa application but subsequently claimed that her father was Dereje Alemayehu and that he was missing. In her birth certificate the father is identified as Abusha Mesekr and in the form 40CH the father is stated to be Getachew Tamer Yousef and that he is permanently incapacitated due to chronic mental health problems. It is also stated that Gatechew Tamer Yousef is the visa applicant’s grandfather who has been taking care of her but who is permanently incapacitated. However, the primary decision record indicates that Dereje Alemayehu provided a letter from Addis Ababa City Government dated 29 September 2014 in which he confirmed that the sponsor, Abusha Alemayehu, was his brother and that the visa applicant, Hiwot, was his daughter. The delegate was not satisfied that the visa applicant’s father was missing.

17. With respect to the father’s incapacity, the delegate noted that there was no evidence of the father’s mental impairment or incapacity and the fact that the father produced a formal letter for legal purposes may contradict the claim of his mental incapacity. In the absence of appropriate medical evidence, the delegate was not satisfied the father was either missing or permanently incapacitated. The delegate was not satisfied that the visa applicant could not be cared for by her parents and that she was an orphan relative.

18. The visa applicant provided with her application documents as evidence of her adoption by the sponsor. These include a court order and a contract for adoption. The delegate noted that the adoption took place around the time of the visa application and formed the view that the formal adoption was arranged for migration purposes only.

    The visa applicant’s parents

19. The Tribunal questioned the review applicant about these discrepancies in the course of the hearing. In relation to the parents, the review applicant said the visa applicant was born to his brother Dereje, who was mentally ill and dependent on drugs. The visa applicant was raised in his house by his step-father Tamiru Yosoph Getachew. She said she gave her grandfather’s name as her father’s name on the forms so that she could have the confidence of having parents and to avoid being bullied at school. It is not clear to the Tribunal how the visa applicant’s self-confidence could be affected by the information she provided in her migration application. While the Tribunal accepts that the visa applicant may have treated her grandfather as her father, that does not explain the provision of incorrect answers on the application form.

20. The review applicant said the name of the father was not mentioned on the application form 47CH because they made a mistake and he did not “pay attention”. The Tribunal does not accept that explanation, given that the name of the mother appears on the form. The review applicant said the name of the mother is not known. He said the name appearing on the application form is that of an aunt and not the visa applicant’s mother. The review applicant said he gave the information about the child’s parents to his agent and he was not sure what was written down. The applicant’s representative explained that the information was confusing and they were under time pressure. The representative submits that the mistake was not intentional as the mistake occurred when he received the information. With respect to the information on the sponsorship form, the review applicant said that his step-father is identified as the visa applicant’s father and the visa applicant’s own name appears as the name of the mother. He said it was due to an honest mistake.

21. In relation to the birth certificate, the review applicant states that the birth certificate refers to him as the father because he was taking care of his niece by that time. He said that the mother’s name is that of his mother (the visa applicant’s grandmother). The review applicant said that in Ethiopia a father is the person who raises the child and the issuing authority could not accept ‘unknown’ on the papers. The review applicant said they explained the circumstances and explained that the child’s mother was not known. The issuing officer said that they could not issue a document with the ‘mother unknown’ so they had to put his mother’s name.

22. The Tribunal questioned the review applicant about his own visa application. The review applicant said that under the Ethiopian culture, different names mean different things. He said that Hiwot means ‘life’ and the names of his sister and the visa applicant are similar. The dates of birth are quite similar as well; they were born about a year and a half apart. The review applicant said that he may have made a mistake in converting his brother’s date of birth from the Ethiopian calendar. He said that they do not celebrate birthdays in Ethiopia and do not pay attention to birth dates. The review applicant stated that he was in a refugee camp and was desperate to leave, so he was not worrying about the dates. The review applicant also said that he did not complete the form but gave the information to another person who may have made a mistake.

23. The Tribunal finds the evidence relating to the visa applicant’s parents problematic. The above information indicates that the visa applicant gave different information about her parents in her visa application form, the sponsorship form and the birth certificates. The review applicant refers to many ‘mistakes’ in these documents. In the Tribunal’s view, such ‘mistakes’ suggest that the information submitted with the application form is unreliable and of little probative value.

    The visa applicant’s age

24. In relation to the visa applicant’s age, the review applicant said that his father documented the age, as he is well educated. His father brought the visa applicant to school and told them her age. She attended one boarding school from Grade 3 until she completed it about five or six years ago around the age of 15 or 16.

25. The review applicant said the visa applicant’s passport and birth certificate were issued on the basis of school records. The school records were issued on the basis of what his father told the school. That is, the evidence relating to the visa applicant’s date of birth is recorded on the basis of a relative’s self-reporting. The review applicant submits that these are accurate because her father kept the records but he no longer has these records.

26. The review applicant provided to the Tribunal copies of the school records which refer to the visa applicant’s date of birth as December 1998. The review applicant explained that the date has been converted from the Ethiopian calendar and there may have been a mistake. The Tribunal does not accept that evidence. Firstly, the Tribunal does not accept that the school would be incapable of correctly converting the date from the Ethiopian calendar to the Gregorian calendar. Secondly, using an online converter, the date of birth would be in August 1998 and not December 1997 as the parties claim. The review applicant’s representative and the visa applicant submit that the school may have made a mistake. If that is the case, the Tribunal finds the school records to be unreliable as evidence of the visa applicant’s age. The review applicant’s evidence is that the passport and the birth certificate were issued on the basis of the school records and in the circumstances, the Tribunal does not consider the passport and birth certificate to be reliable evidence of the visa applicant’s age if the school records are unreliable. Ultimately, the Tribunal cannot be satisfied as to the visa applicant’s date of birth and her age.

27. The representative notes that the school records make the visa applicant younger than she really is and she was under the age of 18 at the time of the application. The Tribunal does not accept that submission because the review applicant’s own evidence is that the school made a mistake. As the date of birth on the school records does not match the date of birth stated by the visa applicant and the review applicant, the Tribunal cannot give the school records any weight as evidence of the visa applicant’s birth date, whether these make her younger or older.

28. The Tribunal has formed the view that the records relating to the visa applicant’s age are unreliable. The school records identify a different date of birth than what the visa applicant and the review applicant claim her date of birth is, and the passport and birth certificate are issued on the basis of school records. On the basis of the presented evidence, the Tribunal cannot determine with any degree of certainty the visa applicant’s date of birth. The Tribunal is not satisfied that the visa applicant was born when she claims to have been born. The Tribunal is not satisfied the visa applicant was under the age of 18 when the application was made. The Tribunal is not satisfied the visa applicant meets r.1.14(a)(i).

    Orphan relative status

29. The Tribunal discussed with the review applicant the whereabouts of the visa applicant’s parents. The review applicant told the Tribunal that shortly after the child was born, a woman brought the child to his parents’ house and said the child is the daughter of his brother. They did not know that woman and did not know who the mother of the child was. The review applicant said his brother was not well and they could not question him. The review applicant said that his brother used to live in a camp but about five or six years ago he went missing. Before that time, he used to visit the local area from time to time but he is no longer there. The review applicant said that they heard a rumour that his brother was in a detention centre about five years ago and they approached the centre but could not locate him. The review applicant said that when he last travelled to Ethiopia, he approached different organisations but could not find his brother. He has no record of these searches. The review applicant said he asks his father regularly about his brother but there is no information about him and they do not know where he is.

30. The Tribunal referred the review applicant to the statement provided with the visa application dated September 2014, to which the delegate refers in the primary decision record. That document refers to the review applicant’s brother living at a particular address and making a request to prove the relationship with the visa applicant and the sponsor. The Tribunal pointed out that this document appears to contradict the review applicant’s evidence that his brother had been missing for about five years and incapacitated prior to that. The review applicant said the document was prepared by his step-father and maybe his step-father gave that information to the lawyer. He notes that the document was a mere formality and his brother’s signature is not on it. The Tribunal notes that the document specifically refers to a request made by his brother. The Tribunal is also mindful that the document was prepared for legal purposes and on the review applicant’s evidence, was prepared by a lawyer. The Tribunal does not accept that it would have been prepared at the request of a third party without any involvement of the visa applicant’s father.

31. The Tribunal has formed the view that the existence of this document is not consistent with the visa applicant’s and the review applicant’s claims that the visa applicant’s father is incapacitated or that his whereabouts are, and were at the time of application, unknown. The Tribunal does not accept that evidence. The Tribunal is not satisfied that the visa applicant cannot be cared for by her father because he is either dead, permanently incapacitated or because his whereabouts are unknown. The Tribunal is not satisfied the visa applicant meets r.1.14(b).

32. The Tribunal is not satisfied the visa applicant is an orphan relative of the sponsor within the meaning of r.1.14. The Tribunal is not satisfied the visa applicant meets cl.117.211 and cl.117.221.

    Other considerations

33. The Tribunal has considered the application against the criteria for the grant of the Child visa. The review applicant told the Tribunal that the visa applicant finished school around 2016. Since that time she has been looking after his father. A few months ago she started English classes two hours a day at her home. The Tribunal finds that such study is not done on a full-time basis and there is no evidence that it would lead to an award of degree, diploma or trade qualification. The Tribunal finds that at the time of this decision, the visa applicant is not undertaking any full-time course leading to a formal qualification. The visa applicant does not meet cl.101.221.

1. The Tribunal acknowledges that there is an Adoption order in relation to the visa applicant. The sponsor’s evidence is that he was an Australian citizen at the time of adoption. There is no evidence that the adoption was done in accordance with the Adoption Convention or on approval of any agency in Australia. The Tribunal is not satisfied the visa applicant meets cl.102.211.

2. The Tribunal has discussed with the review applicant the issue of PIC 4020. In particular, the Tribunal was concerned whether the visa applicant provided false or misleading information in her application in relation to her parents and whether her birth certificate – which identifies other relatives’ biological parents as the parents of the visa applicant – is a bogus document. The review applicant also suggests that the court document listing the father’s address and name did not reflect the correct information as the father was not available. In that case, the information contained in that document was false or misleading and the document itself may be a bogus document. The review applicant submits that the school records contain incorrect information about the visa applicant’s age and may also be bogus documents. However, as the Tribunal has found that the visa applicant does not meet other requirements for the grant of the visa, the Tribunal does not make any findings in relation to PIC 4020.

3. The review applicant states that he would not bring the child to Australia unless she was his relative. He states that his father cannot care for the visa applicant because of his illness and old age and he wants to fulfil his mother’s wish to bring the child to Australia. Otherwise, the child may end up on the street and it would be unsafe for her. The Tribunal acknowledges that evidence but cannot recommend the grant of the visa on humanitarian grounds. Having found that the visa applicant does not meet the requirements for the grant of the visa, the Tribunal must affirm the decision under review.

   Conclusion

4. 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

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

   Kira Raif
   Senior Member