Gebre (Migration)

[2020] AATA 4585

Gebre (Migration) [2020] AATA 4585 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tsegay Gidey Gebre

VISA APPLICANTS:  Mr Tesfay Kidu Gebru
Miss Hareg Kidu Gebru

CASE NUMBER:  1713989

DIBP REFERENCE(S):  OSF2013/101418

MEMBER:Rachel Westaway

DATE:30 June 2020

PLACE OF DECISION:  Melbourne

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

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

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 30 June 2020 at 5:23pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Federal Circuit Court remittal – no parental care – evidence of deaths of parents – statement by aunt/guardian, church notices of death and burial and photos of grave sites – decision under review remitted

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

CASE
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 3 September 2014 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 March 2013. 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 and 117.223.

4. On 3 September 2014, the first delegate refused to grant the visas because the results from a verification check revealed that both parents are not deceased as claimed in the application. Furthermore, the delegate found that the applicant gave false and misleading information relating to her parents. The applicant stated that there were compelling and compassionate reasons for the waiver of the public interest criteria, however the delegate did not considered these grounds to be sufficient.

5. The applicant applied for review of the decision with the Migration Review Tribunal and on 16 June 2015 the Tribunal affirmed the decision not to grant the visa.

6. The Tribunal found that the applicant satisfied PIC 4020 for the purposes of cl. 117.223. However the Tribunal was not satisfied that the applicant’s parents are both deceased as claimed and consequently that they are orphan relatives of the review applicant because of the unreliable evidence of the deaths of the parents and consequently do not satisfy cl. 117.211.

7. On 28 June 2017, the Federal Magistrates Court ordered by consent that the matter be reconsidered by the Tribunal because a certificate pursuant to 375A[1] and 376[2] of the Migration Act 1958 (Cth) were not disclosed to the applicant.

   [1] Department file ff 282, 150-159

   [2] Ibid ff1-3, 5-79

8. The review applicant appeared before the Tribunal on 8 May 2019 to give evidence and present arguments. The two visa applicants were also available to provide evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the two applicants, Mr Tesfay Kidu Gebru and Miss Hareg Kidu Gebru are the orphan relatives of and Australian relative, the review applicant and sponsor, their claimed Uncle, Mr Tsegay Gidey Gebre.

12. The matter was remitted by consent to the Administrative Appeals Tribunal on the basis of denying the applicant procedural fairness by not disclosing two non-disclosure certificates.

13. The Tribunal considered the certificates and the material covered by the certificates. The first certificate 375A was determined to be valid. It contained a list of names of people being considered for resettlement. However it was not relevant to the review because it did not suggest anything relating to the existence of the applicant’s parents.

14. The second certificate s. 376 contained information about and copies of the sponsor’s humanitarian visa application and was determined to be contrary to the public interest to release. The Tribunal found that the certificate was valid but the information contained in the certificate did not contradict any information put forward by the sponsor or applicants in applying for the visa under review and as such, was found not to be relevant to the review.

15. A further certificate s.375A was contained on departmental file OSF2013101418.  It referred to folios 150-159 and disclosure was considered to be contrary to the public interest. The information showed methods used by post to identify fraud patterns. The Tribunal found the certificate to be valid. However, its relevance related to the first Tribunals findings that misleading information was not provided to the Department. The issue was that whilst the documents provided to support the application were considered to be authentic, they listed the applicant’s mother as registering their births when she would have been dead at that point in time. As such, the original delegate found the information to be misleading. The Tribunal accepts the first tribunal’s findings that PIC4020 was satisfied. As such, the information is not relevant to the review and was not presented to the applicants.

    Are the visa applicants an orphan relative of an Australian relative?

16. 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.

17. ‘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.

18. For the reasons below, the Tribunal finds that:

    ·at the time of application, Mr Tesfay Kidu Gebru and Miss Hareg Kidu Gebru were each an orphan relative of an Australian relative and thus met cl.117.211(a);

    ·at the time of this decision, Mr Tesfay Kidu Gebru and Miss Hareg Kidu Gebru are each an orphan relative of an Australian relative and thus continue to satisfy the criterion in cl.177.211. Therefore, they each meet cl.117.221(a); and

    ·at the time of this decision, Mr Tesfay Kidu Gebru and Miss Hareg Kidu Gebru did not continue to satisfy the criterion in cl.117.211 only because they had turned 18. Thus they meet cl.117.221(b).

    Age – r.1.14(a)(i)

19. Regulation 1.14(a)(i) requires that the visa applicants had not turned 18.

20. The application was made on 3 September 2014. Based on the visa applicants’ birth certificates, Mr Tesfay Kidu Gebru was born 21 October 1996[3] and Miss Hareg Kidu Gebru was born on 12 January 1999. At the time of application, Mr Tesfay Kidu Gebru was seventeen years old and Miss Hareg Kidu Gebru was fifteen years old.

    [3]

21. Each visa applicant submitted to the Department copies of the English translations of their birth certificates and certified copies of the bio-pages of their claimed passports to corroborate their claims.   

22. The Department had obtained confirmation from base that the certificates appeared genuine.

23. Accordingly, the Tribunal finds that, at the time of application, both visa applicants met r.1.14(a)(i). At the time of this decision, Mr Tesfay Kidu Gebru and Miss Hareg Kidu Gebru were over 18 years of age and therefore do not continue to meet the time of decision criteria only because they have turned eighteen.

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

24. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is nothing before the Tribunal to indicate that either applicant had a spouse or de factor partner at the of application or decision. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

25. There is no evidence or information before the Tribunal to suggest that, at the time of application or at the time of this decision or any time in between these two dates, any of the visa applicants has been married or in a de facto relationship. The review applicant gave oral evidence that the visa applicants were not married. The Tribunal accepts this oral evidence.

26. 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)

27. 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.

28. The Tribunal has considered the Australian Citizenship certificate [4] as evidence that Mr Tsegay Gidey Gebre is an Australian citizen and the DNA evidence[5] supported a strong proposition that the sponsor was the Uncle of the two visa applicants. The Tribunal therefore finds that in the present case, Mr Tsegay Gidey Gebre is the relevant Australian relative. 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)

    [4] Ibid f:93

    [5] Tribunal 1 file 1415534

29. 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.

30. The Tribunal has considered the evidence before it which the applicant has provided. The applicant claims that that the visa applicants’ parents are deceased and as such they have no parental care.

31. The Tribunal has also considered the credibility concerns raised throughout the application process about information regarding family composition and the evidence from the applicant’s guardian who is now over the age of eighty and is their maternal aunt. Ms Letkidand Engida’s evidence was considered to lack credibility because she did not confirm her knowledge of the existence of an uncle. This Tribunal has reconsidered this issue and the weight previously given to the overall credibility of the evidence because she failed to disclose this. The death of the visa applicants’ parents is independent of the credibility of a witness and with the additional evidence before this Tribunal, her knowledge of his existence is not relevant to the criteria at hand and has no implication on this Tribunal’s acceptance of the genuineness of the death certificates with the new and additional evidence provided. Furthermore, the Tribunal has considered the age of the woman and the submission explaining the possible reasons for her not stating she knew of his existence.

32. The tribunal is in receipt of a detailed submission from the applicants dated 18 May 2018 which it places some weight on to further reinforce the genuineness of the claims that the visa applicants’ parents are deceased when they applied for their visas.

33. The evidence provided included statutory declarations from the sponsor’s wife, a new notice of death and burial from the relevant parish council which is on the site where the visa applicants mother is interred and a similar notice pertaining to the applicants’ father from a different parish council where is interred.

34. A letter from the Deputy Director of the visa applicant’s school has also been provided which states that he confirms the students were enrolled before their father passed away and finally pictures of the grave sites of the applicant’s parents.

35. The Tribunal determines that for the visa applicants no person considered to be a parent is alive, or considered to be alive, or is of unknown whereabouts, at the time of the visa application and at the time of this decision.

36. Having considered and weighed all the evidence cumulatively, the Tribunal is satisfied that 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)

37. 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.

38. The evidence before the Tribunal is that, at the time of application and at the time of this decision, the two visa applicants have been living with their maternal aunt in Ethiopia. The standard of living, access to education and healthcare is significantly different to what the applicants would currently be experiencing.

39. There is nothing in the information or evidence before the Tribunal to suggest that the grant of a visa to each of the visa applicants would not be in their best interests. Indeed, to the contrary, it appears that it would be in their best interests.

40. Accordingly, the Tribunal is satisfied that, in each case, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

    CONCLUSION

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

    DECISION

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

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

    ·cl.117.221 of Schedule 2 to the Regulations.

    Rachel Westaway
    Senior 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.