Dawit (Migration)

[2023] AATA 1935

Dawit (Migration) [2023] AATA 1935 (15 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Letehawerya Meskel Dawit

VISA APPLICANTS:  Miss Masho Teklu Gebru
Mr Welegewergis Weleslassie Gebrehiwot
Miss Mahlet Teklu Gebru

REPRESENTATIVE:  Mr Emete Joesika (MARN: 0100301)

CASE NUMBER:  1835831

HOME AFFAIRS REFERENCE(S):          BCC2018/1457634

MEMBER:Justin Meyer

DATE:15 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the applicants meet the following criteria for a 309 (Spouse (Provisional)) visa:

·cl 309.311 of Schedule 2 to the Regulations

·cl.309.321 of Schedule 2 to the Regulations.

Statement made on 15 May 2023 at 4:03pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – formal adoption is readily available in Ethiopia – formal adoption was reasonably practicable in the applicants’ circumstances – children had been legally adopted – under 18 at the time of application – secondary applicants are dependent children of the family head or of a spouse or de facto partner of the family head – decision under review remitted    

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.04, 1.12, Schedule 2, cls 309.311, 309.321

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 to refuse to grant the applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 29 March 2018. The delegate refused to grant the visas on 4 December 2018 on the basis that the applicants did not satisfy the requirements of cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 309.311 of Schedule 2 relevantly requires the applicants to be members of the family unit of Mr Welegewergis Weleslassie Gebrehiwot (the primary applicant) at the time of application.

3. There are two secondary applicants:

   ·Masho Teklu Gebru (the secondary applicant) (aged 18), applied for the visa on 29 March 2018 claiming to be a dependent of Welegewergis Weleslassie Gebrehiwot (the primary applicant).

   ·Mahlet Teklu Gebru (the secondary applicant) (aged 17) applied for the visa on 29 March 2018 claiming to be a dependent of Welegewergis Weleslassie Gebrehiwot (the primary applicant).

4. Letehawerya Brhanemeskel Dawit, an Australian citizen, is the claimed spouse of the primary applicant. The secondary applicants claim that they are the nieces of the primary applicant.

5. The review applicant (sponsor) appeared before the Tribunal on 23 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Welegewergis Weleslassie Gebrehiwot (the primary applicant), Selemon Yohans, who is the review applicant's extended family member. Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya (Ethiopian) and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in this review are whether the visa applicants:

   ·were members of the family unit of the primary visa applicant at the time of application and satisfy cl.309.311 of Schedule 2 to the Regulations; and/or

   ·are able to satisfy one of the two alternative requirements of cl.309.321 in relation to being members of the family unit of the primary visa applicant at the time of this decision.

9. The secondary applicants are claimed to be the family head’s nieces. The delegate decided that based on this claim, the secondary applicants were not the spouse or de facto partner of the family head and therefore Regulation 1.12(2)(a) was not met. Regulation 1.12(2)(b) states that a person is a member of the family unit of another person (the family head) If the person is a child or stepchild of the family head or of a spouse or de facto partner of the family head (other than a child or stepchild who is engaged to be married or has a spouse or de facto partner).

   The delegate’s reasoning

10. The delegate considered whether the secondary applicants meet the definition of Child as defined in Section 5CA(1)(a) of the Act. The finding was that the secondary applicants are not the biological children of the family head or of the sponsor. The secondary applicants therefore did not satisfy Section 5CA(1)(a) of the Act.

11. An assessment was made by the delegate as to whether the family head had formally adopted the secondary applicant and therefore consideration was made as to the remaining criterion, 5CA(1)(b), which provides that a Child of a person is someone who is an adopted child of the person within the meaning of the Act. Regulation 1.04 provides a definition of ‘adoption’.

12. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

13. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

    ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

14. The delegate found that a guardianship document provided with the application does not constitute a formal adoption order under Ethiopian law. The delegate was not satisfied that the dependent applicants were a members of the family unit of the family head and therefore, at the time of application, Regulation 1.04(1)(b) was not satisfied by the secondary applicants.

15. Going on to consider whether the secondary applicant would meet the requirements of Regulation 1.04(1)(c) because they were customarily adopted, the delegate noted that the regulation requires the adopter to have assumed a parental role in relation to the applicant under other arrangements entered into outside Australia that, under sub regulation (2), are taken to be in the nature of adoption.

16. Regulation 1.04(2)(c)(i) requires that, for arrangements to be considered in the nature of adoption and for customary adoption to be considered to have taken place, the Minister must be satisfied that formal adoption is not available under the law of the applicant’s home country and was not reasonably practicable in the circumstances.

17. The delegate found that formal adoption is readily available in Ethiopia and therefore was satisfied that formal adoption was reasonably practicable in the applicants’ circumstances. Whilst the Primary applicant has claimed that the Secondary applicant was resident with him from 2013, he has not provided any evidence to demonstrate that formal adoption was not reasonably practicable in the circumstances.

    Evidence and analysis

    The review applicant

18. The Tribunal received oral evidence from the review applicant, Mrs Dawit. She believed that the children had been legally adopted. She said a court been approached for this in Addis Ababa. There was no one who could look after the children after the disappearance of her husband’s brother. She said her husband, the primary visa applicant, had the children under his care. She said there is a legal document to show this.

19. I noted that the representative’s submission states that by death of her husband’s brother, her husband automatically becomes the father of children. She said that this was religious and customary.

20. I noted that the delegate had said that the parties have not gone to the highest court in the region and therefore the children were not all formally adopted. The review applicant said that when she sponsored her husband, his brother had disappeared.

21. Her husband had gone to the office but have been told that he could not adopt the children because he was moving to Australia. She said he tried that they would not let him because of that rule. He was told however that he was the guardian of the children even though he could not adopt them

    The primary visa applicant

22. Mr Gebrehiwot told the Tribunal that the father of the children (his brother) disappeared and the children came into his care. He then went to Addis Ababa to confirm this arrangement at the High Court. He said that he had difficulty with the legal arrangements, possibly because he was from Tigray and was discriminated against. He said it was at the time of the Civil War. He said he tried his best, but circumstances prevented him gaining formal adoption. He assigned somebody to represent him in court but after that had no contact with that solicitor.

23. Mr Gebrehiwot said that he had recently found out that the children are in fact alive. The children were under 18 at the time and none of them are married or are in a de facto relationship. He said that they lived together in the same house.

24. He said that if the children came to Australia they would live with him. He said the children had been going to school. He said in the past he had fed them and cooked for them. He remembered them when they the ages of 12 to 13 years. He said that the children’s behaviour was good and they were good with him. He could describe their interests and hobbies, and their school friends.

25. The town is called Metemma (in northwestern Ethiopia, on the Sudan border). It takes nine to ten hours to get there by car upon entering the country.

26. The Tribunal asked what assumptions were made about the fate of the parents.

27. Mr Gebrehiwot said that the area in question was near the city and border. He said that his brother was a merchant and it was known that people were stopping and stealing from travellers. He described these people as bandits. He made enquiries but found that people did not want to answer questions because they were afraid. The primary applicant said his mother also went looking but had no success.

28. Both of the children’s parents went missing.

29. He made a missing person’s request by going to the police station and told them about the disappearance. Notice was put on a noticeboard of the administration of the area.

30. The mother was very stressed. She died on 12 December 2013.  His brother has not reappeared since.

31. The Tribunal discussed with the primary applicant the disappearance of the parents. He said that his brother as a mobile merchant was going through the Tigray region. He had intended to remain in that region. He looked after his wife and wanted to find a place for them to live. He said that was in February 2013. He said after that they did not return.

32. The primary applicant tried to find them by visiting the places where his brother had gone.

33. The Tribunal discussed Mr Gebrehiwot’s family Australia. He has three children with his sponsor, all of whom were born in Australia. The primary applicant said he was supporting the children overseas for the last two years. All however the eruption of the war has prevented him from sending money. He said people have disappeared. Yet he has information that the children are still alive. He said friends who have relatives of the children.

34. He contacted this friend who said that the children were living in Adwa, a town in Tigray Region. He obtained a telephone number. I asked how he knew that they are alive and he said that it has been confirmed that they were living in this district.

35. The primary applicant gave an indication of his income which was about AUD2,000 per week working in a warehouse and working as a driver. He said once every two or three or six months he sends to the children around about ETB 10,000. This is their sole income.

    Mr Selemon Yohans

36. The witness is a relation of the review applicant and gave character evidence. He said that he knew that she had sponsored her husband and his dependents. He said they were very anxious considering that the children had been left without appropriate care. The stress affected the review applicant. He said he had heard from a witness that the children are alive. He said he was surprised that the primary applicant was not helped when he visited Addis Ababa.

37. The witness said that at the moment there was no Internet and no banking in the Tigray area. It is impossible to get documents now. Discrimination would have also stopped the receipt of documents before the war.

38. He had heard stories from others that documents were impossible to obtain from this region.

    Other evidence

39. There is a variety of other evidence to support the parties’ claims.

40. Mr Yohans made a written statement consistent with his oral evidence.

41. The review applicant and primary visa applicant have made consistent declarations.

42. There is a submitted document (translated) from an Ethiopian court of 2018 noting the granting of guardianship to the primary applicant regarding the children. Similarly, birth certificates are shown of the children.

43. Given the hardships involved in Tigray in recent years and the freezing of internet and telephone services by the central government[1], the Tribunal accepts that the children are unreachable at present.

    [1] ‘No timeline’ for restoring internet to Tigray: Ethiopia minister | Internet News | Al Jazeera 30 Nov 2022  >

    The Migration Act stipulates that ‘Adoption’ has the meaning set out in Reg 1.04 as follows:

    Reg 1.04 Adoption

    (1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

    (a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

    (b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

    (c) other arrangements entered into other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2) For the purposes of paragraph for the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

    (a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter, and

    (b) the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

    (c) the Minister is satisfied that

    (i) formal adoption of the kind referred to in paragraph (1)(b):

    (A) was not available under the law of the place where the arrangements were made; or

    (B) was not reasonably practicable in the circumstances; and

    (C) the arrangements have not been contrived to circumvent Australian migration requirements.

44. The Tribunal finds that the primary visa applicant made an attempt to formally adopt the children but was denied by authorities. The Tribunal accepts that he may have faced discrimination as he is from the Tigray region. This legal adoption was not available for him under the law of the place where the arrangements were made, was not reasonably practicable in the circumstances, and due to the consistency and plausibility of the evidence I find the arrangements have not been contrived to circumvent Australian migration requirements. The children have been customarily adopted, and I accept that culturally this is a practice for deceased sibling’s children. The relationship between the parties is closer than anyone else.

45. As regards to the family unit definition (as attached the following Regulation 1.12 ‘Member of the family unit’), the secondary applicants are dependent children of the family head or of a spouse or de facto partner of the family head. There is no evidence that have married or de facto partners, they lived with and were usually resident in the family head's household; and were and are is dependent on the family head for their support. The evidence has borne this out.

46. Dependent Child is defined in the Regulations as follows:

    Dependent child, of a person, means the child or stepchild of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a) has not turned 18; or

    (b) has turned 18 and:

    (c) is dependent on that person; or

    (d) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions.

    s5(1) provides that child of a person has a meaning affected by s.5CA

    Section 5CA Child of a person

    5CA) (1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

    (a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);

    (b) someone who is an adopted child of the person within the meaning of this Act

47. The Tribunal is satisfied that in the case of the secondary visa applicants that Masho Teklu Gebru has turned 18, and is dependent on the person. Mahlet Teklu Gebru has not turned 18. They were both under 18 at the time of application. Both are adopted children of the person within the meaning of this Act

48. Therefore, reg.1.04(1)(c) is satisfied.

49. The secondary applicants are living in accommodation and premises entirely funded by money provided to her by the primary applicant and her spouse.

50. The Tribunal finds that at the time of application the applicants were members of the family unit’ of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

51. They meet cl.309.311 of the Regulations.

52. The Tribunal finds that the secondary applicants: continues to be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria) and thus, also meet cl. 309.321 at time of decision.

53. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

54. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the applicants meet the following criteria for a 309 (Spouse (Provisional)) visa:

    ·cl 309.311 of Schedule 2 to the Regulations

    ·cl.309.321 of Schedule 2 to the Regulations.

    Justin Meyer
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …