Ambaw (Migration) - [2021] AATA 4538

Ambaw (Migration) [2021] AATA 4538 (8 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Abiy Ayele Ambaw
VISA APPLICANT:  Mr Yabsira Hunegnaw Ayele
CASE NUMBER:  1833109
HOME AFFAIRS REFERENCE(S):          2016047082 OSF2016047082
MEMBER:M. Edgoose
DATE:8 November 2021
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 08 November 2021 at 4:48pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – mother’s unknown whereabouts – father’s claimed permanent incapacitation – visa applicant 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 October 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth).
The visa applicant applied for the visa on 14 July 2016. 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.
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.
The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 28 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yabsira Hunegnaw Ayele, the visa applicant, Ms Yeshiwork Aklilu, the aunt of the visa applicant and Mr Dawit Asgedom, a friend of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.
On the day of the hearing the Tribunal made several attempts to contact the visa applicant by telephone and on each occasion the calls went unanswered. Given this the Tribunal provided the visa applicant through his representative time to provide a written submission by 1 November 2021.
The review applicant was represented in relation to the review by his representative.
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?
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ambaw (Migration)

Details

AGLC: Ambaw (Migration) [2021] AATA 4538
Case: [2021] AATA 4538
Decision Date: 8 November 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), before the Administrative Appeals Tribunal. The applicant sought review of a decision not to grant the visa. The core of the dispute revolved around whether the visa applicant met the definition of an "orphan relative" of an Australian relative, as required by the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision. Specifically, the Tribunal had to consider whether the applicant could be cared for by either parent, given the claimed permanent incapacitation of the father and the unknown whereabouts of the mother. The definition of "orphan relative" under regulation 1.14 of the Migration Regulations 1994 was central to this determination.

The Tribunal reasoned that to satisfy regulation 1.14(b), an applicant must demonstrate that neither parent can care for them due to death, permanent incapacitation, or unknown whereabouts. The Tribunal found that while the applicant claimed the mother's whereabouts were unknown since 2001, the evidence provided, a newspaper clipping from 2014, was afforded limited weight. This was because the applicant had not engaged with services like the International Red Cross or local Kebele offices to trace the mother, nor had they provided physical evidence of their own search efforts. The Tribunal concluded it was not satisfied that the mother was missing or of unknown whereabouts, and therefore the criteria for the Subclass 117 visa were not met.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, Subclass 117.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEIs the visa applicant an orphan relative of an Australian relative? 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. ‘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, Mr Abiy Ayele Ambaw, is the relevant Australian relative. 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 continues not to be met at the time of decision.No parental care – reg 1.14(b) 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. According to the delegate’s decision the visa applicant claimed his mother, Elsa Kebede had been missing since 2001 and that a newspaper clipping calling for anyone with information in regard to her whereabouts had been provided as evidence. The Tribunal notes that this advertisement was only placed on 24 November 2014 in regard to pending adoption proceedings. The delegate also found that the visa applicant had not gone to International Red Cross who offers a ‘person tracing’ service for families who have missing family members. The delegate stated that they would have expected applicants who claim ‘unknown whereabouts’ in Ethiopia would have provided evidence that they have engaged Red Cross and their local Kebele office. For these reasons the delegate placed limited weight on the newspaper clipping and therefore was not satisfied the visa applicant’s mother was missing or of unknown whereabouts. At hearing the applicant’s informed the Tribunal that the mother is still missing and of unknown whereabouts, but they had no physical evidence to support this claim. The Tribunal asked the applicants if they had engaged Red Cross and their local Kebele office. The applicant responded at hearing that they had not engaged Red Cross or their Kebele office. The review applicant claimed at hearing that when he visited Ethiopia, he had visited a number of offices in search of the visa applicant’s mother but he informed the Tribunal that he had no physical evidence to support this. Based on this evidence the Tribunal is not satisfied the mother of the visa applicant is missing or of unknown whereabouts.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.M. EdgooseMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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