Eshete (Migration)

[2018] AATA 5854

Eshete (Migration) [2018] AATA 5854 (30 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ashenafi Zeray Eshete

VISA APPLICANT:  Master Adonyas Mola Basse

CASE NUMBER:  1817040

DIBP REFERENCE:  2015074982

MEMBER:Rosa Gagliardi

DATE:30 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a subclass 445 – Dependent Child – Extended Eligibility (Temporary)(Class TK)(Subclass 445) visa for reconsideration with the direction that the applicant meets:

·cl.445.211 of Schedule 2 to the Regulations; and

·cl.445.222 of Schedule 2 to the Regulations.

Statement made on 30 November 2018 at 10:39am

CATCHWORDS
MIGRATION – Cancellation – Extended Eligibility (Temporary)(Class TK) – Subclass 445 (Dependent Child) – Federal Circuit Court remittal – blood relative – children have no contact with biological father – issues of a ‘dependent child’ and ‘child of a parent’ – status of parents that are not biological parents – review applicant continues to provide financially for visa applicant – abandoned and orphaned children in Ethiopia – applicants held to be credible – decision under review remitted

LEGISLATION
Family Law Act 1975, ss 4, 60EA, 60F, 60H, 60HA, 60HB
Migration Act 1958, ss 5(1), 5CA, 5CA(1), 65
Migration Regulations 1994, Schedule 2, rr 1.04(2), 1.05(1)(a), 1.05A, cls 445.211, 445.222
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008

CASES
 Knightley & Brandon [2013] FMCAFam 148

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 27 January 2016 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 March 2015. The delegate refused to grant the visa on the basis that it was not accepted that the visa applicant was the “dependent child of a visa holding parent” as set out under cl.445.211.  

3. The Tribunal as is currently constituted heard this matter in April 2017.  On appeal, however, the Federal Circuit Court remitted the matter by consent as the Tribunal had erred in that it had not had applied the appropriate regulations and had not taken into account that if a child is under 18 years of age at the time of application, then dependency is directly established.  The Tribunal at hearing asked the review applicant whether he was amenable to the Tribunal hearing the matter again given that it had previously affirmed the decision.  The Tribunal reassured the review applicant that it would keep an open mind and would rectify the jurisdictional error made to ensure that the regulations were followed.  The applicant agreed to proceed.

4. The review applicant/sponsor appeared before the Tribunal again on 8 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the spouse of the review applicant, Ms Betelhame Fasil Asmamaw.  The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent.

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

7. The issue in the present case is whether the visa applicant is the child or step-child of the sponsor (other than a child who is engaged to be married or has a spouse or de factor partner):

   445.211  
       

   The applicant:

   
          

   (a) is a dependent child of a visa-holding parent; and

   
               

   (b) is sponsored by the nominator or sponsor of the visa-holding parent. 

8. ‘Dependent child’ is defined in r.103 of the Regulations and states the following

   
    
                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.

   Background

9. At the time of application, the applicant was 17 years of age.  He is an Ethiopian citizen.  The sponsor is a 38 year old Australian citizen who currently resides in Australia.  The ‘visa holding parent’, Ms Betelehem Fasil Asmamaw is a 31 year old Ethiopian citizen who currently resides in Australia.  Ms Asmamaw, the visa holding parent was granted a subclass 309 visa on 31 December 2013. 

10. It is claimed that the applicant is the blood relative of Ms Asmamaw’s husband, the sponsor, Mr Eshete, who is also the sponsor for a subclass 309/100 Partner visa (for Ms Asmamaw).  It is claimed that Mr Eshete is the brother of the children’s late biological mother and that he is, therefore, their maternal uncle. 

11. The children’s biological mother passed away on 28 April 2006.  Shortly afterwards, it is claimed that the applicant’s father abandoned him and his sister (also an applicant for this visa class: (Decision 1817040) as he has relocated to a different region, starting a new life with a new family.  It is claimed that the children have had no contact with their biological father or his new or extended family since then.

12. After the death of the children’s mother and the claimed abandonment by their father it is asserted in the migration agent’s submission of 30 May 2017 that the children went to live in Mr Eshete’s household.  Further, it is claimed that at first the grandfather took care of the children but due to ill health and retirement that role was taken over by Mr Eshete – the only working family member in that household. 

13. It is further claimed that when Mr Eshete migrated to Australia in 2007, he continued to provide financially for the two children and supported them emotionally, taking care to ensure they were enrolled in and attended school.  It is claimed that by operation of law,

    
    

    Mr Eshete became the children’s guardian.

14. It is also claimed that Ms Asmamaw had a small business in Addis Ababa, being a children’s shop and she brought clothes and toys for the applicant and his sister.  It is claimed that having no mother, they grew attached to Ms Asmamaw.  Mr Eshete was aware of

    
    

    Ms Asmamaw’s involvement with the children on a daily basis and often consulted with her in relation to the issues of their welfare.

15. Throughout the children’s lives it is claimed that Ms Asmamaw, the sponsor lived next door to them with her own family in a government owned block of flats in Addis Ababa. 

    
    

    The children also spent a considerable amount of time playing with Ms Asmamaw’s younger brother and stayed over for family meals. 

16. In his statutory declaration, dated 17 October 2010 and provided to the department in support of Ms Asmamaw’s visa application the sponsor stated on page 2: ‘Betelem has shown her devotion to my family by embracing my two dependent nephew and niece whom I have been providing care since their mother deceased in 1998’ (Ethiopian calendar).

17. After the parties married on 21 May 2012, the children were accepted as part of the family and it is claimed that after Mr Eshete returned to Australia, Ms Asmamaw continued the care of the children. 

18. The migration agent in her submission of 30 May 2017 highlights that when Ms Asmamaw lodged her Partner visa on 5 November 2012, she listed the children under Q39 ‘Do you have any other dependents?’  In terms of their relationship to her she wrote, ‘spouse’s niece’ and ‘spouse’s nephew’ respectively.  It is claimed that at that time neither Ms Asmamaw nor Mr Eshete sought assistance from a migration agent and were not fully aware of how to include the children for migration.  Further, on his sponsorship application, Mr Eshete at Q1 ‘How many people are included in this sponsorship for migration?’ he answered ‘1’.  At Q19 ‘Give details of ALL your fiancé or partner’s dependent family members who are included in this sponsorship’, Mr Eshete listed the applicant and his sister, Bezawit. 

19. It is also claimed that there are other people living in Ms Asmamaw’s Ethiopian household, including her parents and brother, but that nobody in that household is working or has been working for the last 15 years.  It is claimed that Ms Asmamaw’s brother is still studying and that indeed it is Ms Amamaw who is supporting the whole household either through her business in Ethiopia or from Australia.  The migration agent has written, “Ms Asmamaw currently works in Dandenong Valley Private Hospital as PSA and has been receiving family tax benefits for her Australian citizen children (currently three) since coming to Australia”.  It is also claimed that in the children’s maternal grandfather’s household there is no income other than the grandfather’s pension in the sum equivalent to AUD39.00 per month.  The grandfather’s pension is not enough for even one person so he is also supported by

    
    

    Mr Eshete from Australia. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. Extensive evidence has been submitted, including church documents and testimonies from neighbours that the mother of the applicant is deceased and the Tribunal accepts that this is the case.  On the basis of the evidence given at the most recent hearing the Tribunal also accepts that the applicant’s father has abandoned the applicant and is no longer involved in the applicant’s life.

21. The applicant was 17 years of age at the time of application on 24 March 2015. Therefore for the purposes of cl.445.211 the Tribunal is bound to apply the definition for “dependent” as per sub-regulation 1.03(a) and does not require dependency to be established under the definition of “dependent” in regulation 1.05A. 

22. Therefore, the Tribunal finds that at the time of application by virtue of the applicant’s age, the applicant was dependent on the person, being the visa holding parent, Ms Asmamaw. 

23. Thus the issue for the Tribunal is whether the applicant meets the definition of “child” for the purposes of s.5CA at the time of application.  Section 5(1) provides that a ‘child’ of a person has a meaning affected by s.5CA.

    Child of a person
    (i) 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. 

24. The current definition in s.5CA for ‘child of a person’  refers to the concept of ‘child’ in the sense of a child’s familial relationship with another person, rather than the age of the child in terms of being a ‘minor’ or in terms of a child’s dependency on his or her parents. This definition is supplemented by the concept ‘parent and child’ in r.1.14A of the Regulations.

25. As the migration agent has pointed out in her submissions, neither the Migration Act nor other Commonwealth legislation provides a definition for “child” or “parent” within the meaning of the Family Law Act.  While s.5CA does not comprehensively describe who can be considered as a ‘child’ of a person, s.5CA(1)(a) links the meaning of ‘child of a person’ under the Act to the meaning of ‘child of the person’ in the Family Law Act 1975 (‘the Family Law Act’). Although the Family Law Act does not precisely define who is a ‘child’, the relationships that are child-parent relationships, or the concept of a ‘child of a person’, and although there are biological fathers who are not parents and people who may have the status of parents but are not biologically or through adoption related to a child owing to the operation of s.60H of the Family Law Act, a child-parent relationship under that Act generally refers to the relationships between a child and each of his or her biological parents. Given the link in s.5CA(1)(a) of the Act to the Family Law Act, a ‘child of a person’ under the migration law would include a biological child of a person.

26. The ‘child’ definition in s.5CA of the Act is also affected by the meaning of ‘child’ as expanded or modified under the Family Law Act. Relevantly, this means that under s.5CA of the Act, a child born to a couple before their marriage,[1] or a child born to a person or to a couple (including married,[2] or de facto partners whether of the same or opposite sex[3]) as a result of artificial conception procedure, or surrogacy arrangement,[4] could be considered as the child of a particular person, or as a child of a person who is the ‘product of a relationship’[5] the person has or had as a couple with another person, provided that certain requirements under the Family Law Act are met, though the child is not biologically related to the person(s).

    [1] s.60F(1)(a) of the Family Law Act.

    [2] See s.60F of the Family Law Act which deems certain children as children of marriage, and s.4 of the Family Law Act which defines ‘child of a marriage’.

    [3] The link in s.5CA(1) of the Act to ss.4(1), 4AA, 60EA and 60HA of the Family Law Act allows children of same sex relationships to be considered as ‘child of a person’ for the purposes of migration law.

    [4] s.60HB of the Family Law Act. A surrogacy arrangement is recognized in Australia if a court order under a prescribed law of a State or Territory is made to the effect that the child is the child of one or more persons; or each of one or more persons is a parent of a child.

    [5] Explanatory Memorandum to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 effective 1 July 2009. Essentially, a child cannot be a ‘product of a relationship’ unless he or she is the biological child of at least one member of the couple (i.e. is conceived utilising the gametes of one party to the relationship), or was born to a woman in the relationship.

27. The migration agent has helpfully included in her submissions case law where the discussion turned on the meaning of child/parent and refers to comments made by his Honour FM Harman in the case Knightley & Brandon [2013] FMCAFam 148 (1 February 2013). Specifically, His Honour stated that any number of factors, other than biology, might be properly considered in determining the question of who are a child’s parents. His Honour decided that a maternal aunt caring for the children since their mother’s death was a parent for the purposes of the Family Law Act and ordered that she have sole parenting responsibility for the children. 

28. In its previous decision the Tribunal considered that there was limited evidence to demonstrate that the father of the applicant had relinquished care for his offspring and had been concerned that the “arrangement” had been entered into for the sole purpose of the applicant achieving a migration outcome to enable the applicant to benefit from a higher standard of living in Australia.  The Tribunal’s concern was that the father may have had ongoing care of the applicant but was happy to agree to the applicant’s migration to secure a better future for him.  On reflection, however, the Tribunal finds that the evidence that would point to such a contention is limited.  Further, on applying the appropriate regulations, and in speaking to the sponsor and his wife at hearing more recently, the Tribunal gained the impression that they were credible and that they were genuinely concerned for the welfare of the applicant and that the biological father of the applicant is not being a “parent” in that the applicant is not being cared for by him in any way. 

29. The evidence, pointing to the applicant’s biological father not providing parenting to the applicant is persuasive and the Tribunal relies on it.   

30. The evidence relied upon by the applicant to show that his biological father was no longer his parent was the court’s decision in relation to the guardianship of the applicant dated

    
    

    7 August 2013, which states among other things, “there (sic) biological father, Mr Mola Basse is alive but as he can not properly provide the children with the necessary care and the nature of his work forces him to go to (sic) from Djibouti from time to time so that I, the petitioner together with Mr Ashenafi Zeray Eshete have filed obligation against his guardianship and the court has revoked his guardianship and custodian title…”. 

31. In addition, evidence has been given that prior to the application being made, the applicant’s father had not been seen for some seven or eight years and the sponsor’s wife gave credible evidence that she had traced the applicant’s biological father and asked to provide a letter of consent for the child’s migration to Australia.  In the letter, the biological father stated that he could not have enough energy to support his two children as he moved far away seeking a taxi driving job to lead his life.  He wrote that he knew the sponsor had generously given them “any type of assistance”.  His remarriage and having children with his new wife meant that he “lost the courage to look after my previous children”.  And “If Mrs Betelehem and
    Mr Ashenafi want to take the children to Australia where they live…even though I am going to miss them; as far as I cannot offer them any support, I believe the life and future of the children would be much better if they live with their guardians.  This is my decision and absolute preference of (sic) the children”. 

32. The Department was very concerned about the use of the words by the applicant’s biological father that he would “miss” his children (the applicant and another sibling), meaning that it implied that the biological father had been caring for them all along and he would be relinquishing his children on their departure to Australia, after which time he would cease caring for them.  The Tribunal considers, however, that to take this interpretation as correct and to rely on this interpretation against finding in favour of the applicant is unreasonable.  Because the biological father had another family and felt compromised in terms of not being able to care for the children of his marriage to their mother, does not mean that the father did not have the capacity to “miss” his children whether he had been seeing them or not.  Even though the applicant’s biological father may not have been involved in their lives and had moved on to have another family, does not preclude him having missed or missing his children. 

33. The Tribunal notes that many children are orphaned and abandoned in Ethiopia given that country’s socio-economically disadvantaged circumstance.  It counts as having one of the largest populations of orphans in the world; 13% of children throughout the country are missing one or both parents.[6] The Tribunal accepts that such abandonment is fuelled in some cases by the very disadvantaged circumstances of parents.  Further:

    In Ethiopia, as in most traditional societies, there has been a strong culture of caring for orphans, the sick and disabled and other needy members of the society by the nuclear and extended family members, communities and churches.  However, the advent of urbanization exacerbated by the recurrent drought and the resultant famine coupled with the internal and external wars that took place in the couple of last decades have claimed a heavy toll of human life.  Millions of people were forced to migrate to centers where food was distributed.  Consequently, thousands of children were left unaccompanied as neither family nor communities and religious organizations were able to discharge their traditional roles and functions… [7]

    [6] accessed on 29 November 2018.

    [7] Tsegaye Chernet, Overview of Services for Orphans and Vulnerable Children in Ethiopia, 26 April 2001, of Services for OVC in Ethiopia,pdf, accessed on 29 November 2018.

1. In such a context, the Tribunal does not consider that it is far-fetched that the biological father of the applicant did not cope and “abandoned”, in its broader sense, the applicant to the sponsor’s wife.  In the context of the country information, the Tribunal considers that it is less likely that the biological father confected the abandonment, for the purpose of enabling the visa applicant attain a migration outcome.

2. In his letter to the Department it appears that the biological father was stating that as a widower he could not look after the applicant and his sibling any longer as he had to go and make a living for himself to survive.  In other words, he would have had to work in a job that did not afford stability as he had to go to various areas to find work and this was inconsistent with his capacity to take care of two children.  Hence, the Tribunal cannot operate under the assumption that the children were deliberately abandoned to achieve a migration outcome.  The evidence provided at hearing persuaded the Tribunal that this was not the case. 

3. In the circumstances the Tribunal finds that at the time of application the applicant was the dependent child of the sponsor and therefore met the criteria for cl.445.211.

4. The Tribunal notes that it is argued in the alternative, in the event the Tribunal does not accept that the applicant and the sponsor have a child parent relationship, that it should consider the adoption that took place in Ethiopia.  While it is not relevant to this inquiry, given that the Tribunal accepts that the applicant met the requirements of cl.445.211, it is not necessary to go to the issue of the validity or otherwise of that adoption.  Nonetheless, the Tribunal notes in passing that the court order submitted and issued by the Addis Ababa City Federal First Instance Court dated 12 August 2013, refers to guardianship of the applicant and his sibling.  However, as the court order was not endorsed by the Ministry of Women Children and Youth Affairs as required, this court order alone cannot be relied upon by the Tribunal.  In addition, country information demonstrates that regional Supreme Courts or the High Court in Addis Ababa usually issue formal adoption orders. 

5. Nor can the Tribunal consider whether the applicant was adopted customarily as regulation 1.04(2) requires that such an adoption requires the Tribunal to be satisfied that formal adoption was not reasonably practicable in the circumstances.  In this case, clearly, formally adoption measures are practicable in Ethiopia.  The migration agent at hearing argued that the Tribunal did not have the power to go behind a formal adoption order and the Tribunal agrees that this is the case, however, as the Tribunal has not taken the court order which was not issued in the regular way, to be a formal adoption order, the Tribunal has not relied on it.

6. Cl.445.222 requires that at the time of decision the applicant continues to be a dependent child of the visa-holding parent.  The applicant was 17 at the time of the application in March 2015.  At the time of decision he is over the age of 18 and hence the Tribunal is required to apply the definition of regulation 1.05A for the applicant to continue to meet the requirements of the visa.  1.05A requires that the applicant is dependent on the sponsor for his basic needs for food, clothing and shelter and an assessment about whether this reliance was, and continues to be, greater than his reliance upon any other person (reg.1.05(1)(a)).  In this case it is claimed that the applicant has been dependent on Ms Asmamaw since his mother’s death and that this dependency started after she married the sponsor.  

7. The Tribunal accepts that the applicant is not working and is attending school on the basis of the evidence submitted.

8. The Tribunal has sighted a list of all the funds sent to Hewanesesh Assefa and Zeray Eshete Woldemichael for the applicant and his sibling between 6 March 2014 – 29 March 2017 and beyond.  As the Tribunal remarked in its previous decision, these are not insignificant sums for two children given the exchange rate with the Ethiopian Birr.  In its previous decision the Tribunal placed an unreasonable burden on the applicant in that it required “probative evidence” that such funds have: (a) gone to the applicant specifically, and (b) they have specifically been used for a substantial period and for the applicant’s shelter, food and clothing. 

9. In the circumstances such probative evidence would be difficult to attain and instead the Tribunal prefers to rely on the credibility of the sponsor and his wife and the supportive statements prepared by close neighbours of the applicant, who have testified that the sponsor’s spouse took responsibility for the applicant and that she met all his needs, including taking him to school and church and continues to do so from Australia.  The Tribunal found the sponsor and the applicant credible in their statements that funds sent overseas were for the purpose of providing food, shelter and clothing to the applicant and continues to be.

10. As such, the Tribunal finds that the applicant also meets the requirements of cl.445.222.

    DECISION

11. The Tribunal remits the application for a subclass 445 – Dependent Child – Extended Eligibility (Temporary)(Class TK)(Subclass 445) visa for reconsideration with the direction that the applicant meets:

    ·cl.445.211 of Schedule 2 to the Regulations; and

    ·cl.445.222 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member