Desta (Migration)

[2018] AATA 903

Desta (Migration) [2018] AATA 903 (22 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Fitsumbrhan H Desta

VISA APPLICANT:  Ms Atsede Gebre Gebreselassie

CASE NUMBER:  1609234

DIBP REFERENCE(S):  OSF2014/044782

MEMBER:Margie Bourke

DATE:22 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.

Statement made on 22 February 2018 at 1:33pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – Review applicant – Australian citizen – Uncle of the visa applicant – DNA paternity testing – Mother deceased – Claimed father of the visa applicant is the biological father of the visa applicant – Biological father has glaucoma – Being cared for by a maid – No compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 rr 1.03, 1.14 Schedule 2 cls 117.111, 117.211, 117.221

CASES

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 Immigration on 2 June 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 December 2014. 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 which requires that the visa applicant is an orphan relative of an Australian relative.

4. The delegate refused to grant the visa because the applicant did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant had established or provided sufficient evidence that she was an orphan relative within the meaning of r.1.14.

5. The review applicant appeared before the Tribunal on 5 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and Tigrinya and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. 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 issue in the present case is whether the visa applicant is an orphan relative within the meaning of r.1.14.

   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 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. Based on the review applicant’s certificate of Australian citizenship, granted on 20 November 2003, I am satisfied that he is an Australian citizen. Based on the copy of the records of the review applicant’s parents’ names in his application for an humanitarian visa submitted approximately in the year 2000, and the records of the visa applicant’s mother’s parents’ names recorded on her death certificate, issued in 2016, I am satisfied the review applicant and the visa applicant’s mother were siblings. I am satisfied the review applicant is the uncle of the visa applicant. In the present case, the review applicant, Fitsumbrhan Hagoss Desta, is the relevant Australian relative.

11. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is 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)

12. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. I have considered the visa applicant’s birth certificate, her Ethiopian passport and the letter from the church diocese administrator, which record her 1999 date of birth. I am satisfied that the visa applicant was born in 1999 on the date recorded in those documents, and I am satisfied that at the time of application on 19 December 2014, the visa applicant was aged 15 years. Accordingly r.1.14(a)(i) was met at the time of application.

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

13. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. I have considered the consistent oral evidence before me, and I am satisfied that the visa applicant does not, and has never had, a spouse or de facto partner. 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)

14. 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.

15. For the reasons set out above, I am satisfied that the review applicant is an Australian citizen, and is the uncle of the visa applicant. I am satisfied based on the evidence before me that the review applicant has been an Australian citizen since 2003, and is usually resident in Australia. 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)

16. 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.

17. I gave some consideration to the comments in the Department’s decision record dated 2 June 2016, about the age of the visa applicant’s claimed parents, and the fact it was unusual in Ethiopia for parents to start to have children late in life.  The visa applicant was invited to participate in DNA with her claimed father to establish paternity.  The parties consented to participate in DNA paternity testing, and the report dated 6 November 2017 advised that the likelihood that Gebre Gebreselassie is the father if the visa applicant is 99.99%.  Based on the DNA report, I am satisfied that the claimed father of the visa applicant is the biological father of the visa applicant.

18. I have considered the translated medical report dated 3 June 2014 from St Mary Hospital in Axum which advises that the visa applicant’s father is “unsighted” due to a disease of glaucoma.  The report records he has no visualisation or light in either eye.  I have considered the Global Sisters Report,  by Joyce Meyer, in GSR Today, dated 2 August 2016, National Catholic Reporter, which reports that Ethiopia has the reputation of the highest rate of blindness and impaired vision, and 1.6% of the population or 250,000 people are blind.  The report states that access to care is almost economically impossible, as caring for a dependent blind family member keeps people from employment.  The Fred Hollows Foundation website, at A Brief Introduction to Ethiopia records that Blindness and low vision are major health problems in Ehtiopia;  people who live in rural areas and females are at higher risk of eye disease.  The report advises that people who suffer blindness or eye damage cannot work and must rely on family members for their care.  The article Prevalence and causes of blindness and Low Vision in Ethiopia, Ethiopian Jouirnal of Health Development, April 2008, Researchgate, also finds that Ethiopia is believed to have one of the world’s highest rates of blindness. The article refers to a survey of over 30,000 people in Ethiopia, and concludes eye problems are a major health problem in Ethiopia, and had significant economic and social impacts on those with vision issues, and for the community and the country. The report finds blindness contributes to mortality rates and years of disability. The report finds that particularly rural people and females cannot access health services and are significantly disadvantaged by their blindness or vision impairment.

19. Based on the country information discussed in the preceeding paragraph, I am satisfied that an elderly rural widowed blind man in Ethiopia would be dependent on others for his care, and unable due to his permanent incapacity to care for his daughter.   I am satisfied based on the medical report that Gebre Gebreselassie is aged 64 at the time of this decision, and is blind in both eyes.  I am satisfied based on the country information relevant to Ethiopia and the oral evidence before me, that this man is not able to access any care other than to go to the church each day.  I am satisfied he cannot provide the care the visa applicant needs due to his permanent incapacity. 

20. I have considered the death certificate provided by the applicant. I have considered the consistent evidence which I assess to be credible in relation to the death of the visa applicant’s mother.  I give weight to the translated Social Court petition dated 15 April 2014 which records the testimony that the visa applicant’s mother had died.  I give weight to the letter from the church diocese administrator dated 19 February 2014 which records the visa applicant’s mother died in 2003.   I am satisfied that the visa applicant’s mother has died in 2003.

21. For the above reasons I am satisfied the visa applicant cannot be cared for by either parent because her mother is deceased and her father is permanently incapacitated.

22. 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)

23. 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 the visa applicant.   The visa applicant stated that she is no longer at school, and is supported financially by her uncle.   She stated that her father’s condition is becoming worse, but the maid (paid for by her uncle) would continue to look after him, and her father also relies on the church.   The visa applicant stated she has one aunt and three uncles. Two live in Australia, and two live in Ethiopia, but she did not know them. The visa applicant stated that Rahel lives with her, and she considers her as her sister.  [The DNA report concluded this girl was not the daughter of Gebre Gebreselassie].  The visa applicant stated she had not considered coming to Australia without her ‘sister’.

24. After the hearing the review applicant provided a submission in which he stated that it was in the best interests of the visa applicant to come to Australia as the best possible outcome for her, as she is an intelligent young girl with her future ahead of her.   The review applicant submitted that it was best for Atsede, the visa applicant to come to Australia, even if she was separated from her ‘sister’ and that she could provide support from Australia to Rahel.   I accept this submission.  I am satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the visa applicant.

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

26. Given the findings above, cl.117.211 is met at the time of application.  

27. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl.117.211, but only because the visa applicant has turned 18. It follows that cl.117.221 is met.

28. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

29. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.

    Margie Bourke
    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.