Bayissa (Migration)

[2023] AATA 2795

Bayissa (Migration) [2023] AATA 2795 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Amarech Benti Bayissa

VISA APPLICANT:  Master Habtamu Kebede Benti

CASE NUMBER:  1933003

HOME AFFAIRS REFERENCE(S):          2018012547 OSF2018012547

MEMBER:Stephen Conwell

DATE:31 July 2023

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 31 July 2023 at 3:21pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – age – birth certificate and school records show different date, with birth certificate making him under 18 and school records over – attempt to amend school records – explanation of dates – age by birth certificate would make applicant improbably young for school levels in relation to other students – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(a)(i), Schedule 2, cls 117.111, 117.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 November 2019 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 (the applicant) applied for the visa on 8 January 2018. 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 regulations 1.14 outlining the definition of ‘Orphan Relative’.

4. The delegate refused to grant the visas because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations as the delegate was not satisfied the applicant was an orphan relative of an Australian relative.

5. The review applicant (the sponsor) seeks review of the delegate’s decision. The sponsor provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. The sponsor appeared before the Tribunal on 28 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and a witness, Ms Shewaye Gelete by telephone. The sponsor’s mother accompanied the sponsor at the hearing however the Tribunal decided that, given the age and apparent infirmity of the sponsor’s mother, there was no need or utility in requiring her to give evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages who attended the hearing in-person.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meet the definition of orphan relative in r.1.14, in particular the age requirement at the time of application.

   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 the sponsor, Ms Amarech Benti Bayissa is the relevant Australian relative.

11. Based on the evidence the Tribunal is satisfied that the sponsor is an Australian permanent resident and the applicant’s aunt, and therefore a close relative.

12. For the reasons below, the applicant is not an orphan relative of an Australian relative at the time of application.

    Age – reg 1.14(a)(i)

13. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18 years of age. To meet the definition of orphan relative for the purposes of cl.117.211, the visa applicant must meet the requirements of the regulation at the time of application.

14. The applicant, Habtamu Kebede Benti recorded in his visa application that his date of birth was [February] 2002. The birth certificate he provided in support recorded his date of birth in the Gregorian calendar as [February] 2002. The sponsor, the applicant and the witness attested that the information was correct, and that the applicant turned 18 years of age [in] February 2020.

15. In the course of its integrity checks the Department examined the school records provided by Abiyot Kirs Preparatory School, which the applicant had attended. These checks produced information which contradicted the applicant’s claimed birth date of [February] 2002[1]. The original school transcript which had been issued to the applicant records him being 17 years of age in 2016.

    [1]  For the sake of consistency, all dates noted in this decision will refer to the Gregorian Calendar, unless    stated otherwise.

16. The School advised the Department that after completion of his studies the applicant had sought to amend his date of birth in the school records, presenting a birth certificate in support of his claimed age. As noted in the decision record, the Department found the applicant’s claim to have been born in 2002 to be  improbable as it would suggest that he commenced Grade 1 when he was 3 years of age and was at least two or three years younger than the other students appearing on the examination register.

17. On 5 July 2019, the Department issued a ‘natural justice’ letter to the applicant inviting him to comment on the contradictory information it had regarding his claimed year of birth. On 31 July 2019 the sponsor provided a written response which is quoted in part in the decision record, and which contains the following relevant paragraph.

    … After the death of the applicant's parents, he was placed under the guardianship of his
    grandparents. He started school in June 2007 at the age of 5. He was enrolled in Warka
    elementary school in grade 1. He got double promotion and in June 2008 he started in grade
    3. Then he completed grade 4 in June 2010 and moved to Dila with his grandfather. He enrolled in Dombosko School in grade 5 in September 2010 and completed year 10 in 2016 while he was 14 years old.

18. Prior to the hearing the sponsor also provided a written submission dated 18 July 2023 to the Tribunal, in which she states,

    … As it is stated in reply to the Department's adverse information, it is indicated that the applicant was 14 years old when he completed year 10. The applicant started Grade I in 2007 at the age of 5. He got double promotion He got double promotion and started Grade 3 in September 2009. Then in June 2016 he graduated Grade 10.

19. In the hearing the Tribunal asked the sponsor to explain the discrepancy in the dates noted in her two submissions as to when the applicant commenced Grade 3 - her 2019 statement claims that the applicant commenced Grade 3 in June 2008, whereas in her 2023 statement she claims that he commenced Grade 3 in in September 2009. In reply the sponsor repeated that the applicant had achieved a double promotion in school and that the inconsistency of dates between her 2019 and 2023 statements were due to “calendar changes”. In essence the sponsor maintained that the school records were incorrect and the applicant’s date of birth was as recorded in his birth certificate, [February] 2002.  This is also the submission made by the applicant and the witness (a cousin of the sponsor) – that the applicant’s date of birth was as recorded in his birth certificate, [February] 2002.

20. The Tribunal has carefully considered the evidence before it. It places adverse weight on the fact that the applicant sought to have his school records of his date of birth changed to indicate that he was 14 years old, not 17 years old in 2016. As noted by the Department, notwithstanding his double promotion, it was improbable that the applicant completed his schooling at 14 years of age rather than at 17 years of age like his peers. Adverse weight is also placed on the discrepancy of dates recorded in the sponsor’s written statements of 2019 and 2023. Whilst the Tribunal accepts that in some countries birth certificates aren’t issued soon after birth as a matter of course, in the overall circumstances of this matter, the Tribunal is not persuaded that the applicant’s birth certificate (issued in January 2017, a year before the lodgement of his visa application) can be accepted as the true record of his birth date. The Tribunal is minded to place greater reliance on the school records, particularly as they include the original transcripts of the applicant’s enrolment and passage through to the completion of his studies.  Consequently, the Tribunal finds it to be more likely that the applicant was 17 years  old, not 14 years old  in 2016.

21. The application for the orphan relative visa which is the subject of this review was lodged on 8 January 2018. Based on the age the applicant originally declared to the school, the applicant would have been over 18 at time of application lodgement. Having regard to all of the evidence, including the testimony at hearing, the Tribunal is not satisfied that the applicant was under 18 years at time of application and therefore does not met Reg 1.14(a)(i).

22. For the above reasons, the Tribunal is not satisfied that the applicant meets the definition of orphan relative at the time of application.

23. As the applicant does not meet the definition of orphan relative at the time of application, the Tribunal is not satisfied that the applicant meet the requirements of cl.117.211.

24. 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

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

    Stephen Conwell
    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.