Bati (Migration)

[2021] AATA 4542

Bati (Migration) [2021] AATA 4542 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Geda Korme Bati

VISA APPLICANT:  Mr Nuho Korme Bati

CASE NUMBER:  1834808

HOME AFFAIRS REFERENCE(S):          OSF2017023780

MEMBER:M. Edgoose

DATE:9 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 09 November 2021 at 11:11am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of parents – court documents – validity of death certificates – late issuance of a death certificate – 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 8 November 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 December 2017. 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 and cl 117.221.

4. The delegate refused to grant the visa because the applicant did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant’s parents are deceased.

5. The review applicant appeared before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nuho Korme Bati the visa applicant and Mr Yahiya Hassen a friend of the review applicant.The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is the visa applicant an orphan relative of an Australian relative?

7. 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.

8. ‘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 Geda Korme Bati, is the relevant Australian relative.

9. 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 does not continue to be met at the time of decision.

   No parental care – reg 1.14(b)

10. 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.

11. According to the delegate’s decision the delegate was not satisfied with the documents the review applicant submitted to support that his claims that his parents were deceased. The primary document the review applicant submitted to the delegate was a court document from The Court of Goro Woreda Maliyu Burka Bench dated 16 October 2017. The delegate found that the court documents were insufficient evidence of the visa applicants parents claimed deaths given that official death certificates can be obtained from the relevant issuing authorities in Ethiopia. At hearing the Tribunal invited the review applicant to comment on this claim. The review applicant informed the Tribunal that he was not aware of the type of documents and their importance required to make such an application. The review applicant confirmed that death certificates were available at the time of application. Given the review applicants explanation the Tribunal places significant weight on the delegates findings that death certificates were available at time of application. 

12. On 3 November 2021 the review applicant made a submission to the Tribunal via email. Attached to the email were two apparent death certificates, a statement from the review applicant, a statement about the current situation in Ethiopia, a witness statement and the response to the hearing invitation. The Tribunal has given regard to the two translated claimed death certificates of the claimed parents of the visa applicant. It is claimed that the father of the visa applicant died on 12 March 2003 and the mother on 14 February 2016. However, given that the registration of the death for the claimed father did not take place until 1 November 2021 and the issuance of the death certificate on the same date, the Tribunal has genuine concerns about the validity of the death certificate given that the claim father passed away over 18 years earlier. The Tribunal considers a death certificate would have been issued at the time of the father’s death given that official death certificates were able to be obtained through the relevant issuing authorities. For this reason, the Tribunal gives minimal weight to the death certificate that has been submitted.

13. Given the above concerns about the father’s death certificate the Tribunal also has the same concerns for the claims mother’s death certificate. Given that the registration of the death for the claimed mother did not take place until 10 October 2021 and the issuance of the death certificate on the same date the Tribunal also has genuine concerns about the validity of the death certificate given the claim mother died over 5 years earlier. The review applicant informed the Tribunal that he has nothing to stay other than in these circumstances we don’t usually need the documents. For these reasons the Tribunal gives little weight to the claimed death certificates.

14. The delegates decision further mentioned that the visa applicants mother died due to illness. However, no medical evidence or supporting documents was submitted to the Department or the Tribunal at time of this decision to support this claim. The review applicant informed the Tribunal that she was unwell for some time but did not go to a big hospital and that they have no evidence to support this claim. Therefore, based on the limited evidence the Tribunal is not satisfied there is sufficient evidence to support the claim that the visa applicant’s parents are deceased.

15. The Tribunal has given regard to the review applicant’s undated statement. The Tribunal notes that the statement was also unsigned, completed on Microsoft Word and that this statement was written in English.  At hearing the review applicant informed the Tribunal that a friend helped him to write this statement who was proficient in the English language. For this reason, the Tribunal gives minimal weight to this statement as it was not declared in the statement that it had been written by a third party.   

16. At hearing the Tribunal made three attempts to call the visa applicant via the telephone number supplied. The phone connected however nothing could be heard. The Tribunal notes that the review applicant did not ask for further time for the visa applicant to make a written submission post hearing.

17. At hearing the Tribunal made three attempts to contact witness Mr Yahiya Hassen on the number supplied. On each occasion the call went straight through to the witness’s message bank.  The Tribunal notes that the review applicant did not ask for further time for the witness to make a written submission post hearing.

18. Based on the limited evidence before it the Tribunal is not satisfied that reg 1.14(b) is met. 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?

19. 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.

20. There is no evidence before the Tribunal that the visa applicant has been adopted by the review applicant. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

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

22. 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.

23. 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

24. 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.