Desta (Migration)

[2019] AATA 3872

Desta (Migration) [2019] AATA 3872 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Alemitu Midesqa Desta

VISA APPLICANTS:  Miss Yemisrach Sisay Abera
Miss Ager Sisay Abera
Master Yonata Sisay Abera
Miss Netsanet Sisay Abera
Miss Edilawit Sisay Abera

CASE NUMBER:  1800779

DIBP REFERENCE(S):  2016046564 OSF2016/046564

MEMBER:Stavros Georgiadis

DATE:21 May 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration in respect of all applicants, with the direction that the applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations.

Statement made on 21 May 2019 at 5:10pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – father permanently incapacitated to care for children – mental incapacity – orphan relative of Australian relative – medical condition – review applicant visa applicants’ aunt – whereabouts of  applicants’ mother unknown – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schdeule 2, cls 117.111, 117.211, 117.221



CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

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 Immigration on 4 December 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 5 January 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 (the Regulations). Relevantly to this case, they include cl.117.211.

4. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicants’ father is permanently incapacitated and therefore, not satisfied that the applicants cannot be cared for by either parent for reasons of death, permanent incapacity or unknown whereabouts - r.1.14(b).

5. The review applicant (sponsor) appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rosa Dagatchew who is the sponsor’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicants meet cl.117.211 of Schedule 2 to the Regulations.

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

9. Clause 117.211 requires that at the time of application a 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 years: cl.117.221.

10. ‘Orphan relative’ is defined in r.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): r.1.03. 

11. In the present case, the relationship is one of maternal aunt / nephew and nieces where Ms Alemitu Midesqa Desta (the aunt) is the relevant Australian relative sponsor.  Her Australian citizenship was conferred in 2014.

12. For the reasons below, the visa applicants are each an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicants are each an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl.117.211(a) is met, and continues to be met at the time of decision.

    Age – r.1.14(a)(i)

13. Regulation 1.14(a)(i) requires that a visa applicant has not turned 18. A consideration of the documents before the Tribunal shows that all the applicants were aged less than 18 years at the time of visa application on 5 January 2016.  Since that time, the first named applicant, Yemisrach Sisay Abera, has turned 18 (DOB 18 May 2000) but the Tribunal accepts this has occurred only because of the passage of time pending the review decision outcome. Accordingly r.1.14(a)(i) was met at the time of application in respect of all named applicants and continues to be met at the time of decision with the exception of the first named visa applicant.

    Spouse or de facto partner – r.1.14(a)(ii)

14. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The Tribunal notes the age of the applicants all being under 18 years at the time of application. The accepted oral evidence before the Tribunal is that none of the applicants are married or in a de facto relationship as there is no evidence to suggest otherwise. The Tribunal finds that none of the visa applicants had a spouse or de facto partner at the time of application and continue as such at the time of decision. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

15. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

16. The Tribunal finds that the visa applicants are each a relative of the review applicant (within the meaning of r.1.03) at the time of application and decision. The Tribunal accepts the evidence provided of a relationship that is one of aunt and nephew and nieces. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

17. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either deceased, permanently incapacitated or of unknown whereabouts. The submission is that the whereabouts of the applicants’ mother (who is the sister of the review applicant) are unknown. 

18. The submission is that the applicants’ mother, Mrs Yemengist Midesqua Desta, left the family one morning and did not ever return.  She did not inform her family where she was going and has now been missing for several years.  A search for her by the review applicant in 2014 and the family’s church, the police in Ethiopia and also the Australian Red Cross has not identified any trace of that missing parent. This is confirmed in letters from the Australian Red Cross dated 18 February 2016 and updated 30 November 2018 recording ‘not located’ and also by the review applicant’s oral evidence.

19. The submission is that the applicants’ father spent time in Debark Hospital in January 2015, has been diagnosed [with a medical condition] and also has Parkinson’s disease with depression. The claim is that he is permanently incapacitated to care for his children.  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.

20. At the hearing the review applicant made reference to a certified, translated Court document regarding a hearing held in January 2015 at the Amhara National Regional State Supreme Court, North Gondar, FDR Ethiopia following her sister’s disappearance. The Tribunal allowed additional time for the applicant to produce details of this as it relates to issues relevant to this matter including any purported guardianship arrangement for the applicants and findings of the Court in respect of the mother’s disappearance and the father’s illness and incapacity to care for his children. 

21. On 16 April 2019, the applicant provided the following written submissions and additional material:

    “Please find attached the Court Verdict Document (attachment 1) that the applicant mentioned at the AAT hearing. This document was lodged by the Legal Services with the original orphan visa application. I attach the legal services commission cover letter (attachment 2) which lists the documents provided with the application.

    The only document the family were given is the attached “Verdict”. The document refers to “statements of witnesses recorded in file no 9393”and also a “1 page minutes of the “family council” written on December 28th, 2014 that has given power of guardian to the application regarding the 5 children is attached with the file” . Unfortunately the applicant does not have those documents.

    The verdict also refers to one page paper written by Debark Hospital on January 12th 2015 but we also do not have a copy of this document .

    The Embassy does not appear to have referred to the Court Verdict paper or guardianship in anyway. We submit that the Court documents should be given considerable weight.

    Having all this information the Court has approved the power of guardianship requested.

    It is our submission that the Tribunal should recognise the decision of the Ethiopian Court and give it considerable weight in deciding this application.

    PAMS states that “visas 117 and 837 enable orphan relative minors (in this instruction, "the child") seeking to enter (or remain) in Australia to settle with an Australian relative, usually under guardianship or custody provisions rather than on the basis of adoption”

    PAMS also states “The AH- 117 visa reflects Immigration principles relating to reunion of relatives in recognition of kinship ties and the bonds of mutual dependency and support within families enabling consideration of the orphan relatives of Australia citizens, Australian permanent resident or Eligible New Zealand citizens usually resident in Australia”

    We note PAMS overview to PIC 4015 and PIC 4017 states in relation to International Obligations
    “Where there is a local court order in effect, it may generally be assumed that the court took into account the best interests of the child in determining parental rights/responsibilities. However, as this may not always be the case, officers outside Australia should develop an understanding of local laws and local court processes. This will enable them to be confident about whether or not parental responsibility considerations for a child warrants further investigation and be able to inform departmental officers in Australia who request advice on such issues.”

    It would appear from the “Verdict document” that this particular court on Debark, Ethiopia has taken into account the best interests of the children given the various aspects and witnesses referred to in its decision. Attachment 7 (“Issuing Testimonial letter “from Ethiopian Church ) lodged with our original submission. Unfortunately we have no further medical reports to provide to the Tribunal other than that provided by Dr Ashagrie.

    We provide also the Red Cross letter from 2015 (attachment 3) , requested by the member.”...

22. From the above material and other documents and oral evidence provided or discussed, the Tribunal is persuaded by the applicant’s submission and accepts the following:

    1. That a family council had convened and given Power of Guardianship to Mrs Alemitu Midesqa Desta, accepting that Mrs Desta has legal guardianship of the 5 children.

    2. That a hospital report was provided to the Court which showed the father was ill and unable to care for the children with witnesses also testifying in Court and supporting the claims that the father [has a medical condition] and is affected by mental incapacity “not mentally normal” impacting on his permanent (in)capacity to care for his children. The father of the children also attended the Court and expressed that he was unable to provide care for the children, accepting that this is indefinite or not temporary.

    3. That the Debark Court found, on 13 January 2015 that at that time, 2 years had passed since the mother of the children had disappeared, accepting that the whereabouts of the children’s mother is still unknown.

23. The Tribunal accepts from this that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

24. Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – r.1.14(c)

25. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of a visa applicant. The accepted oral evidence from the review applicant before the Tribunal is that the children are not going to school in Ethiopia due to the stigma surrounding the illness of their father (because of his [medical condition]) and accordingly, have moved away from their family home in Bedra to Gondar approximately 3 hours’ drive away.  The accepted oral evidence is that their aunt, (the sponsor), pays for the rent for those premises and also for a carer to prepare food for the children. The submission is that the children will be better able to be cared for by the aunt in Australia who as aforementioned, is also their legal guardian.

26. The Tribunal considers that there is no compelling reason to believe that the grant of the visas would not be in the best interests of the visa applicants.

27. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

28. Clause 117.211(b) is met if, at the time of application, a 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.

29. Although the applicants have their aunt as their legal guardian, this relationship of aunt / nephew and nieces exists independently of this. Accordingly, cl.117.211(b) is met, and continues to be met at the time of decision.

30. Given the findings above, cl.117.211 is met.

31. The Tribunal finds that the visa applicants continue to meet the requisite criterion in cl.117.211 and the first named visa applicant does not continue to satisfy the criterion in cl.117.211, but only because the first named visa applicant has now turned 18. It follows that cl.117.221 would be otherwise met in respect of the visa applicant who is now over 18 years of age.

32. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa in respect of all applicants.

    DECISION

33. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration in respect of all applicants, with the direction that the applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    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.