Fikak (Migration)

[2018] AATA 1936

Fikak (Migration) [2018] AATA 1936 (8 May 2018)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mehari Fikak

VISA APPLICANT:  Mrs Meriem Ibrahim Shiekay

CASE NUMBER:  1721770

DIBP REFERENCE(S):  BCC2017/1769901

MEMBER:Ian Berry

DATE:8 May 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with a direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:     

●Cl.600.232(2)(a).

Statement made on 08 May 2018 at 3:54pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Close relative – Relationship of mother and son – Marriage certificate of review applicant – Payment transfers – Length of time payments were made – Costs of family visits – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2 cl 600.232

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 12 September 2017 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 May 2017. The delegate refused to grant the visa on the basis that the documentation provided by the applicant was insufficient to show a relationship between the visa applicant and the sponsor the review applicant.

3. The review applicant appeared before the Tribunal on 26 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Leblem Maradom Gebredariam, who is the review applicant's wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Bilen-Eritrean and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is establishing the relationship of mother and son between the visa applicant and the review applicant respectively, that is, as defined by r. 1.03 “relative” of the Regulations, the visa applicant is a “close relative” of the review applicant 

6. The review applicant left his country of origin Eritrea through persecution and imprisonment.  He was a conscript in the Eritrean armed forces and his absence from the Army for a limited period of time resulted in the imprisonment.

7. He cannot return to Eritrea as both he and his wife explained at the hearing.  He could, with his family, travel to Sudan to meet his mother and siblings who now reside there.  However for this family, it would be at a considerable expense to pay the cost of travelling to and from Sudan as well as paying for accommodation. 

8. The review applicant is unemployed and is not financially able to afford the expense.  It would be financially more viable for him to pay the cost of his mother coming to Australia to visit his family in particular the grandchildren who have not seen their grandmother.

9. In establishing the relationship between his mother and himself, the review applicant says that he has been paying his mother monies for an extensive period of time.  He has provided to the tribunal transfer statements in the form of a printout with the description “Olympic International (AUS) Remittance Transfer Services appears to be based Melbourne Victoria.  The parties details identified as being the review applicant.  Transfer states detailed patents from the review applicant to the visa applicant from 2011 to 2017.  The payments appeared to be either monthly or bimonthly.  The payments very the least $150, and at the most $2700, at any one time.

10. The review applicant also refers to his marriage certificate evidencing the marriage between himself and his wife, the date being 15 November 2005.  The marriage occurred in the registry at Keren in Eritrea.  It is normal for weddings to be a registry event.

11. This marriage certificate designates the visa applicant as being the mother of the review applicant.  The death of the review applicant’s father in 2004 is noted in the marriage certificate.

12. The visa applicant travelled to Sudan from Eritrea to visit her sick son and daughter.  She continues to live there. The youngest son was also a conscript and because of his absence, spent time in prison. Now he lives in Sudan.

13. The review applicant provided a photograph (taken in 2005) of family members including the visa applicant and himself, siblings and an uncle. There is a resemblance between the visa applicant in this photograph and the visa applicant in the passport photograph. The Tribunal does not have the expertise to make a finding of identification as the photographs have been taken at different times and the quality varies. The Tribunal does not rely on the photographs as identification of the visa applicant as the mother of the review applicant and therefore makes no finding on this aspect of the evidence.

14. Lastly, the Tribunal had an opportunity to question the visa applicant so as to ascertain whether there was information which may appear to be relevant to a mother and son relationship. It was problematic, in that the visa applicant did not attend school in her life, though her six children did were educated to varying years.

15. The visa applicant could not spell but was able to describe places and names phonetically. She did not understand numbers such as dates of births, years or periods of time, though this was a Tribunal hearing and understandably difficult for her. It meant, at least in answering questions by phone without prompting or assistance, her answers did not greatly assist the Tribunal until the Tribunal asked her about her sons education. She did understand her sons schooling describing the primary and secondary schools he attending and the approximate time he was educated at the schools.

16. The review applicant was prepared for the Tribunal to consider DNA testing. The Tribunal did not consider it as a viable option. As explained to the review applicant, such a procedure involving Eritrea or Sudan and Australia, requires rigorous measures to ensure the test sample is from his mother and not, say a sibling and for there to be verifiable evidence from appropriate bodies or authorities, which may be difficult to achieve.

17. The Tribunal is satisfied by the evidence that the visa applicant and the review applicant are mother and son. The evidence of the payments to the visa applicant by the review applicants, in particular the not insubstantial amounts and the length of time those payments were made. The information on the review applicant’s marriage certificate as long ago as 2005 provides corroboration. All this evidence was not before the delegate when the Departmental decision was made.

18. As the Tribunal is satisfied that the visa applicant and the review applicant are mother and son, the visa applicant is a close relative of the review applicant as defined in the definition in the definition of relative under Regulation 1.03 of the Migration Regulations 1994. Therefore the visa applicant satisfies cl. 600.232(2)(a).

    Decision

19. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with a direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:   

    ● Cl.600.232(2)(a).

    Ian Berry
    Member