Embiza (Migration)

[2017] AATA 485

Embiza (Migration) [2017] AATA 485 (9 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tekea Girmay Embiza

VISA APPLICANT:  Mr Haftom Tekea Girmay

CASE NUMBER:  1514914

DIBP REFERENCE:  OSF062850

MEMBER:Rosa Gagliardi

DATE:9 March 2017

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 March 2017 at 12:03pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Sponsor not in Australia for requisite periods – Held Subclass 444 (Special Category) visa – Not eligible New Zealand citizen – No certificate under Social Security Act 1991

LEGISLATION
Migration Act 1958 – s 65
Migration Regulations 1994, Schedule 2 – cl 101.211, r.1.04

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 31 August 2015 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 to the Department of Immigration for the visa on 12 July 2015. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211.

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met as it was considered that the applicant’s putative father/sponsor is not an Australian citizen or eligible New Zealand citizen but holds a Subclass 444 (Special Category) visa and was not in Australia at the requisite and specified time to meet the criteria.

5. The review applicant appeared before the Tribunal on 9 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s friends, Tsegay Talla and Tsehaytu Mahadere.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Dependent child criteria

7. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a):

   101.211
   
   

   (1)  The applicant:
   
   

   (​a)  is a dependent child of:
   
   

   (i)  an Australian citizen; or
   
   
   (ii)  the holder of a permanent visa; or
   
   
   (iii)  an eligible New Zealand citizen; and
   
   

   (b)  subject to subclause (2), has not turned 25; and
   
   
   (c)  either:

   (i)  is:
   
   

   (A)  the child(other than an adopted child); or
   
   
   (B)  the step-child within the meaning of paragraph (b) of the definition of step-child;
   of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or
   
   

   (ii)  was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
   
   

   (2)  Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

8. Regulation 1.04 defines “Eligible New Zealand Citizen” as.

   eligible New Zealand citizen means a New Zealand citizen who:

   (a)  at the time of his or her last entry to Australia, would have satisfied public interest criteria 4001 to 4004 and 4007 to 4009; and

   (b)  either:

   (i)  was in Australia on 26 February 2001 as the holder of a Subclass 444 (Special Catetory) visa that was in force on that date; or

   (ii)  was in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001; or

   (iii)  has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.

9. The applicant born on 2 March 1999 is now 18 years of age.  He is currently residing in Khartoum, Sudan.  The sponsor who is his putative father, Mr Tekea Girmay Embiza, is not an Australian citizen but holds a Subclass 444 (Special Category) visa which is only a temporary visa and not a permanent one as required.  As such, the Tribunal is required to assess whether the applicant is an eligible New Zealand citizen pursuant to Regulation 1.04.

10. The sponsor arrived in Australia on 22 June 2002 and has made multiple departures and entries after that date.  As the sponsor was not in Australia prior to June 2002 at all, he was not in Australia as the holder of a Subclass 444 visa on 26 February 2001 and was also not in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001. 

11. The Cairo office of the department contacted the applicant to given the applicant and the sponsor an opportunity to confirm whether the sponsor was in the possession of a certificate issued under the Social Security Act1991.  The sponsor replied on 2 August 2015, stating that he had moved to Australia in June 2002 under visa Subclass 444.  No further information was provided to the department confirming whether the sponsor had obtained a certificate issued under the Social Security Act 1991 that stated the sponsor was residing in Australia on a particular date.  On the same day, the case officer sent a reply to the sponsor providing the definition of “Eligible New Zealand citizen”.  On 11 August 2015, the sponsor sent an email attaching his visa entitlement, demonstrating he is the holder of a Subclass 444 visa, but nothing to indicate he is an Eligible New Zealand Citizen.

12. In the circumstances the department had no option but to find that the sponsor was not in Australia on 26 February 2001 as the holder of a subclass 444 and nor was he in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001.  As he had also failed to provide any evidence that would indicate that the sponsor had obtained a certificate issued under the Social Security Act 1991 it was found that the applicant did not meet cl.101.211.

13. The department also conducted an assessment of whether the applicant could meet the provisions of the alternative Subclasses 102.211 for an Adoption visa; as well as 117.211 for an Orphan Relative visa, but found that the applicant did not satisfy the requirements for these subclasses either.

14. At hearing which was held on 9 January 2017 the Tribunal stated that it was prepared to give the sponsor an additional period to provide the requisite certificate issued under the Social Security Act 1991 or to show that he could meet the criteria for cl.101.211 generally.  The sponsor called the Tribunal after the hearing to state that he had called Centrelink to ask them to issue the required certificate but he had been advised that they could not provide it.  The sponsor requested further guidance from the Tribunal. 

15. On 6 March 2017 the Tribunal emailed the sponsor and advised that the Tribunal was not in a position to provide legal advice to the sponsor and that the issues had been canvassed at hearing and that the Tribunal would have to proceed to decision on the basis of the information before it. 

16. At the time of decision the sponsor has not been able to show that he was in Australia on

    
    

    26 February 2001 as the holder of a subclass 444 and was not in Australia as the holder of a Subclass 444 visa for a period of, or periods that total, not less than 1 year in the period of 2 years immediately before 26 February 2001.  In addition, no evidence has been submitted that the sponsor had obtained a certificate issued under the Social Security Act 1991. 

17. As a Subclass 444 – Special Category visa is only temporary, the sponsor is not a dependent child of an Australian citizen and he is not the holder of a permanent visa.  The sponsor is, therefore, required to meet the definition of Eligible New Zealand citizen.  As set out above the applicant has been unable to demonstrate that he meets the definition of Regulation 1.04.  Accordingly, the criteria for the grant of a Subclass 101 visa are not met.

    Alternative subclasses

18. In terms of an Adoption visa Subclass 102, the applicant has made no claims in relation to being adopted in accordance with subclause (2), (3), (4) or (5) and the Tribunal is not satisfied that the applicant meets the requirements of clause 102.211.  Nor has the applicant made claims that he is the Orphan Relative of the sponsor and the Tribunal is not satisfied that he meets the requirements of cl.117.211.

19. The Tribunal would urge the sponsor to seek legal advice about this matter and to explore his options if any.

    DECISION

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

    Rosa Gagliardi
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child 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:

    (i)is dependent on that person; or

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

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …