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

1. 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).

2. 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.

3. 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.

4. The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations.

5. 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.

6. 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.

7. The review applicant was represented in relation to the review by his representative.

8. 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?

9. 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.

10. ‘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.

11. 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)

12. 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.

13. 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.

14. As per the delegate’s decision the Tribunal acknowledges that the visa applicant’s father is alive and his whereabouts are known.  At hearing the applicants confirmed that the father of the visa applicant is alive and his whereabouts are known. The Tribunal accepts that the father of the visa applicant is alive and his whereabouts are known. The Tribunal must consider whether the visa applicant is an ‘orphan relative’ and it must be proven that the father is permanently incapacitated and unable to care for him. The delegate found that the visa applicant had not provided detailed evidence of the father’s claims of permanent incapacitation. Therefore, the delegate was not satisfied that the visa applicant’s father was permanently incapacitated and unable to care for the visa applicant due to his condition. Prior to the hearing a letter dated 22 October 2021 was submitted to the Tribunal from the Abbichu Memorial Specialized Psychiatric Clinic. The letter mentioned that Mr Hunegnaw Ayele, the father of the visa applicant:

    is known for the last 22 years for a mental illness called schizophrenia with a high grade of disorganization and is permanently kept in holy water site in Ethiopia where he is cared for as a he is not manageable at home due to aggressive behavior against all family members.

    He never worked and not in condition to support his children and family.

    His families need support from other care givers.

    We appreciate authorities who are helping his family.

    According to the evidence submitted and the claims made in this letter from Abbichu Memorial Specialized Psychiatric Clinic the Tribunal accepts that the visa applicant’s father is permanently incapacitated and unable to care for him.  However, this letter does not mention anything about the visa applicant’s mother not being able to care for him. It mentions that the visa applicant’s father had:

    never worked and not in condition to support his children and family;

    and that

    His families need support from other care givers.

    Based on this evidence the Tribunal has genuine concerns that the visa applicant lives with his other family members that may include his mother. If this were to be the case the Tribunal is of the view that the whereabouts of the visa applicant’s mother is then known. At hearing the review applicant mentioned that it is the way in which the three doctors have written and signed the letter.

15. The hearing attendant made a number of attempts to call the visa applicant and on each occasion the phone rang out and a message was received stating, “It says the network is busy now please try later”. Given that the Tribunal was not able to make telephone contact with the visa applicant during the course of the hearing it was agreed upon by the review applicant and the representative for the visa applicant to make a written submission. The Tribunal informed the review applicant and representative that the written submission was to be made by 5 pm on 1 November 2021 and that following this date the Tribunal would complete its decision. The representative was also provided the same length of time to make a further submission.

16. On 1 November 2021 the visa applicant submitted to the Tribunal a translated written statement dated 29 October 2021 that outlined in brief his life story. The visa applicant mentioned that he had lived with his father for a period of time and then with the review applicant. The visa applicant states that his father was taken to a spiritual spa and the review applicant took him to live with his aunty at the time he was old enough to attend school. The Tribunal notes that the visa applicant made no mention of his father’s mental health concerns and inability to care for him in his statement. The visa applicant further mentions that he wanted to find his mother but was not successful and believes that she has disappeared and may have changed her name. The Tribunal notes that the visa applicant makes not mention of engaging the Red Cross as stated in the delegate’s decision. Given the limited evidence provided by the visa applicant the Tribunal gives his submission little weight. 

17. Mr Dawit Asgedom, a friend of the review applicant submitted a letter to the Tribunal dated 20 October 2021. Although listed to give oral evidence the review applicant informed the Tribunal that his oral evidence would be no different to his written letter and therefore there was no need to take oral evidence from him. In his letter to the Tribunal Mr Asgedom stated that he had known the review applicant for 30 years and the visa applicant since he was born. He mentioned that he is aware that the visa applicant’s mother had left him when he was a little child and that his father is mentally unfit to support him. Mr Asgedom further stated that the visa applicant currently lives with his aunty in Ethiopia. The Tribunal accepts that Mr Asgedom knows the review and visa applicants well, however he has made no mentioned regarding what the family have done to locate the visa applicant’s mother.

18. Ms Yeshiwerk Aklilu, the aunt of the visa applicant submitted an undated letter to the Tribunal. Although listed to give oral evidence the review applicant informed the Tribunal that her oral evidence would be no different to her written letter and therefore there was no need to take oral evidence from her.  In her undated letter to the Tribunal Ms Aklilu mentioned that she has taken responsibility for raising the visa applicant given that the visa applicant’s father is a psychiatric patient and that his mother abandoned him as a child. Ms Aklilu further mentions that the visa applicant has grown up, and her age is making it challenging for her to take care of the child and that she has transferred the responsibility to the review applicant and his wife. The review applicant informed the Tribunal that she is about 76 years of age.  The Tribunal having considered written evidence submitted to the Tribunal by Ms Aklilu is not satisfied that the whereabouts of the visa applicant’s mother is not known. Although she claims to have raised the visa applicant because his mother had abandoned him there is no evidence to suggest that at any time she has engaged the Red Cross and other organisations to look for the whereabouts of the mother. For these reasons the Tribunal places minimal weight on her submissions.

19. The Tribunal notes that two further undated letters were submitted from a Mr Mengesha Alemayehu Ayele and a Mr Seife Habtewold Weldeyes, both long-time friends of the review applicant.  The Tribunal notes that the two letters of support were similar in content except for the different address and names. Given this the Tribunal gives no weight to these two submissions.

20. The Tribunal has given regard to the submission made by the review applicant’s representative dated 24 October 2021. The representative has dismissed the delegate’s findings regarding the applicants not engaging the Red Cross or other organisations. The representative considered the Ethiopian court’s decision to hold more weight. The Tribunal does not accept the representative’s finding that the Ethiopian court’s decision holds more weight and that the applicants should have engaged the Red Cross and their local authorities who offer a ‘person tracing’ service for families who have missing family members. For these reasons the Tribunal places minimal weight on the representative’s submission.

21. The Tribunal has given regard to the submission made by the review applicant’s representative post hearing dated 31 October 2021. The representative makes a number of claims regarding the issues raised at hearing primarily regarding the delay in application for an Orphan Relative visa and establishing why the parents cannot provide care. The Tribunal has considered the representative’s post hearing submission and gives it minimal weight.

22. Accordingly, reg 1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

23. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

24. The Tribunal is not satisfied the visa applicant had been formally adopted through an approved Australian Government agency. Given that there is no evidence before the Tribunal to indicate that an Australian agency was involved in the visa applicant’s adoption the requirements are not met. Accordingly, cl 117.211(b) is not met, and continues not to be met at the time of decision.

25. Given the findings above, cl 117.211 is not met.

26. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. It follows that cl 117.221 is not met.

27. 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

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

    M. Edgoose
    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.