Ayalew (Migration)

[2019] AATA 4035

Ayalew (Migration) [2019] AATA 4035 (16 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Yetmwork Berhane Ayalew

VISA APPLICANTS:  Mr Brhane  Ayalew Endalew  

Mrs Adanech Mengistie Endeshaw

CASE NUMBER:  1801932

HOME AFFAIRS REFERENCE(S):           BCC2017/3956206

MEMBER:Mary Urquhart

DATE:16 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

Statement made on 16 September 2019 at 3:54pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – intention to comply with visa conditions – incentives to remain in Australia – ties to home country – nature of employment in home country – involvement at church – ongoing political and sectarian tensions in Ethiopia – economic situation in Ethiopia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211, Schedule 8, Condition 8531

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 30 November 2017 to refuse to grant the visa applicants Visitor (Class FA) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 24 October 2017. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visas, on the basis that the visa applicants did not meet cl.600.211 because they were not satisfied that the applicants genuinely intend to stay temporarily in Australia for the purposes of the visa.

5. The review applicant appeared before the Tribunal on 11 September 2019  to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants Mr Brhane  Ayalew Endalew and Mrs Adanech Mengistie Endeshaw by telephone from Ethiopia.

6. The review applicant was represented in relation to the review by her registered migration agent.

7. Prior to the hearing the Tribunal received further documentation for consideration including,   in relation to Mr Endalew:

   ·Payroll and salary information dated 8/6/2019

   ·Pension income and card details

   ·Letter from Gondar R/K/W Church Mekane Sebhat Lideta Mariam Church Parish Council Secretariat dated 10/12/17 signed Temesgen Mesele Deputy Chairman of the Diocese.

   ·Verification Certificate Urban Land Lease Hold including Title number and location of land issued 1/9/2015

   • Document recording as a teacher from 11 October 1976 to 2014.
   • Account statements and balance of funds headed Commercial Bank of Ethiopia dated September  2017 and September  2019
   • Marriage Certificate  8 June 1997
   • Health cover information  dated October 2017

   And, in relation to Mrs Endeshaw

   • Free from debt documentation and salary information and employment documentation as a ‘Light Plant Operator’ dated June 2019
   • Birth certificates for the two daughters of the applicants born 6 May 2002 and 6 February 1999
   • Travel bookings

   In relation to the review applicant the Tribunal was provided with

   • An Australian Citizenship Certificate granted 15 August 1980
   • Tax return for 2018-2019
   • Bank statements for the review applicant and her partner
   • Employment documentation and salary information/pay advice
   • An approval of Loan application letter dated July 2019
   • Family photographs

   Post Hearing

8. A post hearing submission was received at the Tribunal on 13 September 2019.

9. The Tribunal  has considered all the evidence provided both oral and documentary and has carefully considered the post hearing submission..

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

12. In the present case, the visa applicants seek the visas for the purposes of visiting family. The sponsor gave evidence of the purpose of her parents visit. She said she is intending to marry and wants her parents to meet her partner and his family. As well the sponsor wants to show her parents what she has achieved, to show them around and take them to Sydney. The Tribunal  has considered the stated purposes and has taken then into consideration. The Tribunal  is satisfied that a visa in the Sponsored Family stream may be granted for the stated purpose : cl.600.231.

13. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). The applicants have not previously travelled to Australia or outside Ethiopia and the clause is not applicable.

14. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.612):

    ·     8101 – must not work in Australia

    ·     8201 – must not engage in study or training in Australia for more than 3 months

    ·     8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·     8531 – must not remain in Australia after end of permitted stay.

15. There is no information before the Tribunal suggesting that the visa applicants would engage in any work, study or training in Australia.  Accordingly, the Tribunal is satisfied that the visa applicants intend to comply with visa conditions 8101 and 8201. There is no information or evidence before the Tribunal to indicate that the applicants intend to apply for a substantive visa other than a protection visa while in Australia the Tribunal is satisfied that the visa applicant intends to comply with visa condition 8503.

16. The Tribunal considers the likelihood that the visa applicants will comply with the other condition depends on its assessment of their intentions and strength of their incentives to return to Ethiopia balanced against the strength of incentives to seek to remain in Australia. After considering all the evidence the Tribunal concludes that on balance, and for the reasons that follow, the incentives the applicants would have to remain in Australia is significantly greater than the incentives they would have to return to Ethiopia.

17. The applicant Mr Brhane Ayalew Endalew born 23 February 1954 and his wife Mrs Adanech Mengistie Endeshaw born 22 August 1959 are nationals of Ethiopia. They are both of the Amhara ethnicity.  They have family in Ethiopia namely 5 of Mr Endalew’s 6 daughters from his first marriage and two daughters of their marriage.  Their youngest daughter is aged 16. She attends high school. Their second daughter aged 20 attends university and also lives at home. Also living with the applicant’s is the youngest of Mr Endalew’s daughter’s from his first marriage. She is a married woman and lives in the home together with her husband. Mr Endalew is the father of the sponsor (the review applicant) and the stepdaughter of Mrs Endeshaw.

18. The sponsor born 15 August 1990 is aged 38. She has been previously married but is now divorced.  She first came to Australia in 2014 sponsored by her former husband who had himself been sponsored to come to Australia. The sponsor is now in a de facto relationship with Mr Francis Anggo.

19. The sponsor states her occupation as nursing assistant in aged care. She gave evidence that she currently works in two aged care homes. Her work status is permanent part-time. She says she has previously worked full time in an aged care facility for some 10 years. She states she earns $120,000 and that her partner, who also works in aged care earns $65,000.

20. The sponsor has provided evidence of property ownership to the value of some $460,000. She lives in this property with her de facto partner. Her evidence is that recently they purchased a further property which they intend to move into when the building is complete. The sponsor says she and her partner plan to marry.

21. The Tribunal takes into consideration the support offered to the applicants by the sponsor. The Tribunal is also mindful that the onus is on the applicants to demonstrate that they have the means and intention for a genuine visit. In this regard the Tribunal  notes the ability of the sponsor to assist and the amount of money the applicants have and the evidence given about that amount of money (see below).

22. At the time of application 24 October 2017 and at the time of the delegate’s decision (30 November 2017) the applicants were not working. The Mr Endalew was retired and Mrs Endeshaw stated her occupation was home duties.

23. The Tribunal has now received a submission dated 4 September 2019 which states that whilst Mr Endalew was a retired government schoolteacher at the time of application he is now working as a hotel cashier/ manager and overall assistant to the Golden Gate Mall and Restaurant Company he works for. He claims to be earning approximately 5000.00 in Ethiopian currency a month in addition to his usual government pension.

24. The submission states that Mrs Endeshaw was  unemployed at the time of the original application but now she is also employed attached to a government owned company (road construction company) working in equipment and plan maintenance.

25. The Tribunal questioned the applicants and the sponsor carefully about their claimed employment.

26. The evidence is that both applicants commenced employment after their visas were refused in November 2017.

27. Mr Endalew is said to have been working for 1.5 years. Asked why, having retired in 2014, he commenced working again he said it was because if one sits down one gets old. He said he has 3 months annual leave owing to him and wishes to visit Australia for 3 months. He produced a document from his employer dated 30 July 2019 which states which states he has been serving “as a cashier and head of our company” for “long years”.

28. Whilst the Tribunal accepts that Mr Endalew may now be working, on his own evidence it does not accept that he has been with the claimed company for “long years”. The Tribunal formed the view that the nature of his employment, entered into after his visa was refused, is not such as to offer an inducement or incentive to return home at the end of any visit. Rather it appears to be employment taken up in retirement. The Tribunal also notes and takes into consideration the post hearing submission that Mr Endalew works because he is interested in earning more income for the high cost of living expenses.

29. Mr Endalew gave evidence that he receives (in Ethiopian currency) 5000 a month from his work as a cashier, 2,600 from his pension and 4000 in rent from other properties he claimed at the hearing to own. Mr Endalew also provided evidence of some 78,000 in the bank.

30. The Tribunal accepts the cost of living may be high but finds the evidence inconsistent with claims that Mr Endalew is comfortable and well off for Ethiopia. Furthermore the Tribunal has significant concerns that the employment may have been obtained to strengthen the application and notes there is no independent evidence to support leave owing to Mr Endalew of 3 months. Rather the evidence indicates that any leave is based on a request for leave being made one month in advance. There is no mention of any return to work.

31. The Tribunal accepts that Mr Endalew may have a title to the property and some money in the bank. However such assets are easily transferable and on that basis are no supportive or indicative of an intention to return home at the end of any visit.

32. The Tribunal also has significant concerns with the employment claims of Mrs Endeshaw. Her evidence is that she is now working as a plant operator; she said she works with an electricity generator providing electricity for offices. She has changed her circumstances from home duties to full time work. She claims her employer is the Ethiopian Construction Works Corporation. She produced a letter which refers to her being an employee “currently serving”. No details of her commencement are given save for her salary being 3,735 Birr a month. Asked why she had entered the workforce at this time in her life she explained that as her daughters are now grown up she had an opportunity to work. Asked the address of her place of work her response was vague and lacked detail. Asked what other jobs if any she had sought before obtaining this employment she replied she tried for a job in agriculture and as a cleaner at a hospital. She said she has 3 months leave from work and will not stay longer than this. Whilst the Tribunal accepts that Mrs Endeshaw may have a job it is not satisfied the employment represents any satisfactory reason for her to return to it at the end of any visit if granted a visa. Furthermore there is no evidence of leave entitlement or that the job would be available after a period of 3 months away. As discussed the Tribunal has significant concerns that the applicant Mrs Edenshaw’s employment has been obtained or fabricated to strengthen her application.

33. The applicants have declared the presence of family members that will remain in Ethiopia during their proposed visit to Australia, namely five daughters/stepdaughters in their 30ies, a 20 year old and one who is 16 years old.

34. The sponsor claims her father will return home at the end of a visit as he has many interests, cultural ties, property interests and family ties to go back to in Ethiopia. The sponsor gave evidence that her father was born and bred in Ethiopia and has lived there for 64 years to date and that he and her stepmother   are planning to come to Australia merely to visit her and spend enjoyable time with her on her invitation and not on their own volution. She is the only daughter who is away from her father’s eyesight and from his community”. She presented many photographs which she said represent a strong bond between the applicants and all the daughters and stepdaughters.

35. The Tribunal has carefully considered the applicant’ family members remaining at home. The evidence is that the two daughters aged 16 and 20 who live at home will remain in Ethiopia whilst the applicants visit. As well the other 5 married daughters/ stepdaughters will remain. Normally close family members may be an inducement for applicants to return home. However, on the basis of the evidence the Tribunal is unable to be satisfied that the applicants would return to Ethiopia because of the adult daughters and one 16 year old daughter.

36. The evidence is that a married daughter/stepdaughter currently resides in the applicants’ home with the two daughters of the applicants. Evidence concerning this arrangement was reluctantly given with indications that the married daughter lived nearby not in the same house. Ultimately it was agreed they live in the one large 4 bedroom home. Mrs Endeshaw gave evidence several times that she had entered the workforce at age 59 as her children were all grown up. The Tribunal considers adequate arrangements and family care are in place to continue to look after the 16 year old daughter. Furthermore the Tribunal notes that the applicants may seek to bring their daughters to join them in Australia in the future should the applicants seek to remain in Australia and change their status, which would make any separation temporary. The Tribunal formed the view that the applicant’s well settled daughter who is currently purchasing a second property in Australia would provide greater inducement for her parents to remain here at the end of any visit than to return to Ethiopia where economic stability and security are poor.

37. The sponsor referred to her father’s ties to Ethiopia being in particular his involvement in his Church. A document was provided in support of the claim. It certifies that Mr Endalew is “making major contribution to various spiritual activities of the church including building construction and other spiritual activities, performing spiritual duties expected of him as father by coordinating families and friends; in this respect , on behalf of the church we hereby request your cooperation”. Asked about his involvement Mr Endalew said he was a volunteer at the church; he said he had been a volunteer since the establishment of the church some 3 years ago. He said he collects donations and does “bible work”. Asked who he wrote to in order to obtain the letter provided to the Tribunal he replied a preacher on the committee of the church; he said a “clerk signed it and gave it to” him. The Tribunal notes the letter is signed by Temesgen Mesele, Deputy Chairman of the Diocese. The Tribunal finds the evidence of Mr Endalew to be vague and lacking in detail given he claims to have been involved in the church since it was established. The Tribunal notes this evidence was not provided before being presented to the Tribunal and is concerned it has been introduced to strengthen Mr Endless ties to Ethiopia. In turn this raises concerns as to the genuine intentions of the parties to return home at the end of any visit.

38. Recent reports from the Department of Foreign Affairs and Trade (DFAT) indicate that Ethiopia is currently experiencing ongoing political and sectarian tensions including lawlessness, political upheaval and ongoing ethnic violence.

39. In relation to country information it was submitted that currently the country is peaceful under the new Administration. The sponsor claims that the area where her parents are living is not affected or an area to flee from. It was claimed that Ethiopia is now not under red notice and restricted to visits from overseas. Whilst   the Tribunal  accepts  that there is greater stability and acknowledges that the applicants may not be directly affected by the unrest occurring in parts of Ethiopia it also notes the DFAT  reports indicate that there is unrest in areas in close proximity to the applicants residence in Gondar Region near border with Sudan , “High degree of caution” neighbouring areas  Afar region  reconsider need to travel and bordering Sudan Eritrea Kenya South Sudan advise against all travel due to the very high risk.

40. The Tribunal has considered whether food insecurity, poverty and a lack of economic opportunity in Ethiopia may impact on the applicants returning home. Asked about this Mr Endalew gave evidence that life was getting expensive; he said it is true the economy is a problem and there has been a drought but he said it is all exaggerated. The Tribunal notes other evidence that the applicants gave including that though Mr Endalew has money in the bank “it is not that much”. He said this is the reason his daughter is sponsoring them as it would cost them a lot. The Tribunal has concerns that economic factors may impact on the applicants returning home at the end of any visit.

1. The Tribunal notes both the applicants are of Amhara ethnicity. The Tribunal raised this at the hearing. The Tribunal asked Mr Endalew if he had ever experienced any difficulties because of his ethnicity. He replied "no". Asked if he had ever heard of others having problems he replied he knew of some kind of ethnic tensions but they were "far away" from where he is living. Mrs Endeshaw when questioned replied that "because of politics some may have suffered but not much". The Tribunal notes the post hearing submission did not refer to the ethnicity of the applicants. The Tribunal accepts the evidence on face value that that the applicants have not been in fear of persecution on the basis of their ethnicity; never the less the Tribunal considers their ethnicity a live issue in all the circumstances.

2. Tribunal has also considered all other relevant matters (cl.600.211(c)).

3. The Tribunal discussed with the review applicant the possibility of a bond to guarantee the applicants would return home. The Tribunal established that the sponsor understood what this meant. The sponsor confirmed that she was prepared to lodge a bond and that she had significant amount money in her account to do so. The Tribunal finds the offer of a bond does not allay significant concerns regarding the applicant’s intentions to return to Afghanistan.

4. For the above reasons the Tribunal is not satisfied that the visa applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.

   DECISION

5. The Tribunal affirms the decision not to grant the visa applicants Visitor (Class FA) visas.

   Mary Urquhart
   Member