Gebreil (Migration)

[2023] AATA 3791

Gebreil (Migration) [2023] AATA 3791 (8 November 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kedir Mohammed Nur Gebreil

VISA APPLICANTS:  Master Hussen Kelifa Sonesa
Master Hassen Kelifa Sonesa

REPRESENTATIVE:  Mr David Harvey

CASE NUMBER:  1920601

HOME AFFAIRS REFERENCE(S):          2017022853

MEMBER:Margie Bourke

DATE OF DECISION:  8 November 2023

DATE CORRIGENDUM

SIGNED:13 November 2023

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Paragraph 70 of the Decision Record has been updated to read as follows:

Apart from the written responses to the s.359A information in the form of a submission from the review applicant's representative dated 3 November 2023 and received 3 November 2023, the tribunal did not receive any further information, evidence or documents from the review applicant after the hearing, despite the request for time in which to provide further information from the review applicant’s representative, and the Tribunal allowing time for the review applicant to provide further information, evidence or documents that are relevant to the review. The tribunal did not receive a request for an extension of time to provide the further information. The tribunal extended the time for the post hearing responses from 31 October 2023 to 3 November 2023, so all responses from the review applicant were due on the same day.

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kedir Mohammed Nur Gebreil

VISA APPLICANTS:  Master Hussen Kelifa Sonesa
Master Hassen Kelifa Sonesa

REPRESENTATIVE:  Mr David Harvey

CASE NUMBER:  1920601

HOME AFFAIRS REFERENCE(S):          2017022853

MEMBER:Margie Bourke

DATE:8 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 08 November 2023 at 10:26am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – parents deceased, permanently incapacitated or whereabouts unknown – limited, inconsistent and unreliable evidence about family composition and deaths of parents – mother listed on school enrolment after date on death certificate – no original, untranslated versions of some documents provided – no satisfaction that mother deceased – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cls 117.111, 117.211(a), 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 Home Affairs on 17 July 2019 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 30 June 2017. 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 (Cth) (the Regulations). Relevantly to this case, they include cl.117.211 which requires that at the time of application the visa applicant is an orphan relative within the meaning of reg 1.14 of an Australian relative of the visa applicant.

4. The delegate refused to grant the visas because the delegate was not satisfied that the visa applicants were orphan relatives within the meaning of reg 1.14(b).

5. The review applicant was invited to attend the hearing by video, scheduled for 11 September 2023. The review applicant did not attend a test dial arranged by the Tribunal, and the review applicant was unable to connect to the video hearing on 11 September 2023. The visa applicants and their brother were unable to attend the hearing by telephone, but another witness from Ethiopia was able to connect to the hearing by telephone The Tribunal postponed the hearing, and advised it would change the type of hearing to an in-person hearing so the review applicant could participate in the hearing without any difficulty. The Tribunal discussed with the review applicant’s representative who attended the hearing by video from interstate, that the visa applicants and their brother could attend the hearing by telephone from the location with the other overseas witness at the next hearing date.

6. The review applicant appeared before the Tribunal on 17 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the two visa applicants, their brother Mensur Kelifa, and the school registrar Mulatu Wolde, who all attended the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

7. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing by video from interstate.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants meet the requirements of reg 1.14(b) in relation to the definition of orphan relative. Reg 1.14(b) requires that the visa applicant cannot be cared for by either parent because each parent is either dead, permanently incapacitated or of unknown whereabouts.

10. In this review the two visa applicants are siblings, and claim that both their parents are deceased. The two visa applicants are twins, and therefore have the same date of birth, in September 2001.

    Is the visa applicant an orphan relative of an Australian relative?

11. 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.

12. There is no evidence before the Tribunal that the visa applicants have been adopted by an Australian relative, and therefore the requirements of cl.117.211(b) do not apply. The Tribunal has considered whether the visa applicants are orphan relatives of an Australian relative for the purposes of meeting the requirements of cl.117.211(a) at the time of application

13. The Department invited the visa applicants and the review applicant (their sponsor) to participate in DNA testing. Based on the DNA report dated 14 January 2019 the Tribunal is satisfied that the review applicant, is the uncle of the two visa applicants, and the two visa applicants are biological siblings.

14. Based on the certificate of Australian citizenship granted 30 October 2008, the Tribunal is satisfied that the review applicant is an Australian citizen.

15. ‘Orphan relative’ is defined in reg 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): reg 1.03.  In the present case, the review applicant is an Australian citizen and the uncle of the visa applicants and therefore is the relevant Australian relative of the visa applicants.

16. The Tribunal has considered whether the visa applicants are orphan relatives of an Australian relative at the time of application. The Tribunal has set out the evidence, and its considerations and assessment of the evidence in relation to whether the visa applicants meet the requirement of orphan relative in reg 1.14(b) below in this decision record.

    No parental care – reg 1.14(b)

17. Regulation 1.14(b) requires that a 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.

18. The review applicant provided the Tribunal with the two Department decision records dated 16 July 2019 in relation to the two visa applicants. The review applicant provided the Department and the Tribunal with documents of the death certificates of the parents of the visa applicants.

19. The review applicant stated he has been away from Ethiopia for many years. He stated the visa applicants’ mother was his sister. He stated he returned to Ethiopia in 2007. He is certain the visa applicants were born in 2001. He stated he has returned to Ethiopia since 2007.  He stated the visa applicants currently live and study in Jimma, and have lived there for about 15 months with their older brother.

20. The review applicant stated he has eight brothers and eight sisters, and he is the only one residing in Australia. He stated he supports all of them.

21. In his evidence Hassan stated that the review applicant, his brother is the only relative he has.  I asked him if he had lots of aunts and uncles, and Hassan stated he did not. Hassan stated his mother did not have brothers and sisters apart from the review applicant.

22. Hussen stated to the tribunal that he only had one uncle on his mother’s side. He stated that he does not know of any other aunt or uncle.

23. The visa applicants older brother stated they had no other relatives; no aunts or uncles in Ethiopia, and they only know the review applicant as their relative. 

24. The review applicant told the tribunal after the evidence of the visa applicants and their older brother that he did not know why they said they had no relatives. He stated their lives were difficult, but the correct situation is the visa applicants and their brother had sixteen aunts or uncles plus their mother, and three of them had died.

25. I accept the evidence of the review applicant in relation to the number of his siblings. I am satisfied that the visa applicants and their brother would know of the existence of their mother’s relatives, her eight sisters and brothers, their own aunts and uncles.  I find that the visa applicants and their brother have given unreliable and untruthful evidence to the tribunal about their relatives.  I assess the remaining oral evidence before me with appropriate caution.  

    Documents provided to the Department with the application for the visa

26. It is important in this review to acknowledge that relevant dates may differ, and be recorded either in the Ethiopian calendar or the Gregorian calendar.

27. The death certificate recorded that the visa applicants’ father Kelifa Sanasa Gurmu, was born on 27 July 1957 (Gregorian calendar) or 20 November 1949 (Ethiopian calendar) and died in Addis Ababa on 24 February  2016 (Gregorian calendar) or 16 June 2008 (Ethiopian calendar). The death certificate was issued on 19 April 2016 (Gregorian calendar) or 11 August 2008 (Ethiopian calendar).

28. The translated death certificate provided by the review applicant recorded the visa applicants’ mother Momina Mohammednur Gebreil was born on 20 October 1964 (Gregorian calendar) and died in Jimma Town on 30 September 2014 (Gregorian calendar). The certificate was issued on 6 February 2017 (Gregorian calendar). The untranslated death certificate records the visa applicants’ mother was born in the Ethiopian calendar year of 1957, and died in the Ethiopian calendar year of 2007, and the certificate was issued in the Ethiopian calendar year of 2009. The untranslated death certificate records the date of death in the Ethiopian calendar is 20 January 2007.

29. The visa applicant Hassan Kelifa Sonesa provided the Department with documents from the school, Kolfe  Keranio Sub City Woreda 7 Addis Tessfa Primary School. In the Department’s decision records dated 16 July 2019 the Department recorded they conducted background checks with this school to verify the visa applicant’s claims. The Department records that the checks revealed that the visa applicant was enrolled at the school on 26 August 2009 (Ethiopian calendar) by Momina Mohammed, and that he ceased attending the school the same year, 2009 (Ethiopian calendar).

30. The review applicant’s representative provided the Tribunal with a submission dated 4 September 2023, in which the representative stated that the Department refused the two visa applications in July 2019 because the delegate did not accept the [visa] applicants’ mother was deceased, based on a report from the visa integrity unit which concluded the mother was still alive. The representative referred to the visa application which included letters from the Addis Tessfa Primary School confirming the visa applicant Hassan Kelifa Sonesa had attended the school from the years 2009 to 2017 and that his brother Mensur had been “making close follow-up on him”. 

31. The Tribunal has considered two translated letters from the Kolfe Keranio Sub City Woreda  7 Addis Tessfa Primary School in relation to the visa applicant Hassan Kelifa Sonesa the review applicant provided the Department, dated 17 May 2017 and 14 February 2019. The first letter dated 17 May 2017 records that the student Hassen Kelifa Sonesa is a seventh-grade student in the 2017 academic year at the school and is achieving satisfactory results. This letter dated 17 May 2017 was accompanied by an untranslated copy of the original document from the school.

32. The letter dated 14 February 19 states that the visa applicant Hassan Kelifa Sonesa has attended the school from 2009 up to 2017, and asserts that no other family member has been taking care of him except his older brother. No untranslated original or copy of the original letter was provided to the Department or to the Tribunal.

33. The Tribunal has considered the applicant provided two translated letters dated 18 February 2019 from the Kolfe Keranio Sub City Keranio Medhanealem Sec. & Preparatory School, and from Addis Ababa Tegbareid Polytechnic College. These letters relate to the visa applicant Hussen Kelifa Sonesa, and his courses of study in the years 2017 and 2018 at the school, and his application to the College in 2019. These letters referred to the visa applicant being supported by the older brother at the school and that no parent has attended the College. No untranslated original or copy of the untranslated original letters were provided to the Department or to the Tribunal.

34. The Department invited the visa applicants to provide the untranslated letters and the original letters from the academic institutions in relation to the letters provided dated February 2019. The Tribunal has noted the submissions of the review applicant’s representative dated 4 September 2023 that the applicants are still trying to trace the originals of these letters.

35. The Tribunal assesses that it would not be too difficult to request the schools to provide a copy of the untranslated letters, or to provide another letter containing similar information provided in the translated letters submitted to the Department from the schools.

36. The original untranslated documents, or further information from the same sources has not been provided to the Department or to the Tribunal.

37. What is relevant to this review and what was discussed with the review applicant, the visa applicants, their brother and the representative in the hearing is the information recorded in the Department’s decision record, (a copy of which was provided by the review applicant to the Tribunal) and referred to in the submissions by the representative provided to the Tribunal. This relevant information is that the Department made enquiries of the Kolfe Keranio Sub City Woreda 7 Addis Tessfa Primary School, which indicated that the information provided to the school in the year 2009 (Ethiopian calendar) was that the mother of the visa applicants was alive, and not deceased in 2007 as had been recorded in the death certificate.

    Oral evidence of the visa applicants and the witnesses

38. The visa applicants Hassan Kelifa Sonesa and Hussen Kelifa Sonesa both told the tribunal in the hearing that they were 22 years of age. The visa applicant Hassan stated that he was a little child when both his parents were deceased. In answer to further questions from the Tribunal,  Hassan stated both his parents are deceased and he does not know exactly what happened to his parents.  Hassan stated he knows his mother died first. He stated his older brother told him his parents passed away in 2014 and 2016.

39. The visa applicant Hussen stated he could not remember anything about his parents, except he remembers his father was a tall man. He stated his parents are deceased. He stated he does not know what caused his parents to pass away because he was a child. He stated he did not know whether his parents were in good health or were ill when they died as he was a little boy at the time. Hussen stated his older brother told him his father passed away in 2016, and his mother passed away in 2014. He stated his older brother has not told him much about his parents. Hussen stated he has no memory of the time that he lived with his father.

40. Based on the Gregorian calendar, in February 2016 when the death certificate records his father died, Hassan and Hussen were aged 14 years, and in September 2014 when the death certificate records his mother died, Hassan and Hussen were aged 13 years.

41. Hassan agreed in an answer to a question from the Tribunal that seven years ago he was 14 years of age. I asked Hassan whether he thought a 14-year-old boy was a small child. The visa applicant did not answer this question. I discussed with Hassan that I may assume he did not want to answer my question about his age at the time his father passed away, or my questions about memories he had of his parents, if he did not respond. Hassan stated he did not know how old he was when his father passed away. Hassan stated he does not remember anything about his family. I explained to Hassan that this was his opportunity to tell his story, and to tell the Tribunal about the memories of his parents. I explained to Hassan that if his mother died when he was 13 years old and his father died when he was 14 years old I would expect that he would have some memories of his parents. Hassan stated he had no memories and could not remember anything about his parents.

42. I discussed with Hussen whether he had any memories of his parents, and he repeated that he did not have any memory except that his father was tall. I explained that this was his opportunity to tell the Tribunal about his life and his parents, it was his chance to tell his story to the Tribunal about his memories of his parents. Hussen stated he had nothing that he wanted to say. Hussen then stated he could remember his father getting angry but he had no real picture in his mind of this, and could not tell the tribunal any more.

43. The school registrar Mulatu Wolde gave evidence in the hearing that the two visa applicants have been students at the school Abinet Information Technology Computer Training Centre since November 2022. He stated November is the beginning of the academic year. The registrar stated that their brother comes to do the payments for the two visa applicants. The school registrar stated he did not know anything else about the visa applicants’ family. I asked the witness in three or four different ways whether he had any knowledge of the visa applicants’ family or the circumstances, and he stated he had no knowledge of their family or their family circumstances.

1. The witness had provided a statement to the Tribunal in which he had stated that he was aware the visa applicants’ parents were deceased. The representative asked me to put further questions to the witness. I advised the representative I was not going to cross-examine their witness on the written statement provided. I accepted his oral evidence, and I was satisfied that he understood the questions from the Tribunal and I was satisfied that the witness had given clear, reliable and unequivocal oral evidence that he did not have any direct knowledge of the visa applicants’ family or their family circumstances. I have had the opportunity to assess the witness and his oral evidence, and I give his oral evidence greater weight as being more reliable evidence of the school registrar’s knowledge of the visa applicants and their circumstances, than the written statement provided.

2. The visa applicants’ older brother gave evidence, in the hearing. He stated he was three years older than the two visa applicants. He stated that when they started school at the primary school he was there, but he was studying night classes at the time because he was working. The visa applicants had told the tribunal that they started primary school when they were aged approximately eight years. I asked the older brother whether his evidence meant that when he was 11 years old, and prior to the death of either parent he was also working and studying at night school. The witness stated that this was right, and when the visa applicants started school his parents were still alive, he was studying at the primary school at night time and he was working during the day. The witness stated that the three brothers all lived with their parents during this time and was unable to explain why he was required to work when he was 11 years old and unable to explain why he had to go to primary school at night.

3. The visa applicants’ older brother stated he could not remember the circumstances of his parents’ death. He stated he understands they may have been ill and then died but did not know the circumstances of the illness. The visa applicants’ brother stated that his father was sad after his mother passed away. He stated that he and his brothers were not that attached to either of their parents. He stated he did not have anything else that he wanted to tell the Tribunal.

4. I asked that the visa applicants’ older brother how he was so certain about the year in which his parents died. He stated he remembered the day of their death. I asked him whether his parents died at home or in hospital. The visa applicants’ brother stated he was not at home at the time his father died and when he came home he did not ask whether his father died in hospital or in the house. He stated there was no schooling at the time of his father’s death, it was the Ethiopian raining time (June to September). He stated he could not remember whether he was away at work, just that he was not at home when his father died.

5. The visa applicants’ brother stated that they were kids and were playing when his mother died, and he does not know if she died at home or in hospital. He stated he has nothing to say about how she died; he stated they just have not concentrated on it.

6. The visa applicants’ brother stated he thinks his parents are buried around Kolfe. He stated they have not made any attempt to find out where his parents are buried.

7. I discussed with the review applicant that I had concerns about the lack of information provided by the visa applicants in relation to their parents and their family circumstances, and the death of their parents. I also discussed with the review applicant that I had concerns about the lack of information from the visa applicants’ brother about the circumstances of the death of his parents.  I discussed that the evidence from the visa applicants and their brother was so limited, that it indicated to me that it may not be reliable as evidence that their parents were deceased.

8. It is a relevant consideration that the two visa applicants were aged 13 years at the time recorded in the death certificate of their mother’s death, and their brother was aged approximately 16 years at that time. It is a relevant consideration that the two visa applicants were aged 14 years at the time recorded in the death certificate of them father’s death and their brother was aged approximately 17 years at that time. I would anticipate that being teenagers at the time of their parents deaths, with whom they all say they resided, the two visa applicants would have memories of their parents, and the two visa applicants and their older brother would have memories of the circumstances of the deaths of their parents, even in relation to simple matters concerning whether either parent had been ill at the time or whether they died at home or in hospital.

9. I discussed with the visa applicants and their brother the information that had been contained in the Department’s decision record, and had been referred to in the submissions by their representative, namely that the Department had made enquiries of the primary school that the visa applicants claim they attended since approximately aged eight years. The information recorded in the Department’s decision record indicated that the visa applicants’ mother was recorded in the school records as being alive after the date of her death as recorded in the death certificate provided by the visa applicants.

10. The visa applicants and their older brother and the review applicant denied that this information recorded in the school records was correct.

11. In fairness to the review applicant, I advised that I would put the contents of the report from the primary school obtained by the Department to the review applicant pursuant to s.359A of the Act after the hearing, and give him the opportunity to consider the information obtained by the Department in detail, and to have reasonable time to prepare and provide comments and responses to the information. The Tribunal wished to ensure that it fully discharged all obligations of procedural fairness to the visa applicants. I have discussed the information in the hearing to the extent that it had been provided by the applicants in the representative submission and in the Department’s decision record, but I advised I wished to put the detail of the information to the review applicant and give him the opportunity to comment and respond.

12. The review applicants’ representative requested the opportunity to provide further information in relation to issues that had been discussed in the hearing. The Tribunal is cognisant that it can be difficult for visa applicants and witnesses to give evidence in a hearing, particularly by telephone through an interpreter about matters that can be sensitive or difficult. The Tribunal noted that the visa applicants and their older brother had provided very limited information in their oral evidence, as was discussed with them in the hearing. The Tribunal advised the representative that it would grant a period of 14 days for the visa applicants and the review applicant to provide any further information that they wished, that was relevant to the issues in relation to the review.

13. After the hearing of the Tribunal sent a letter to the review applicant dated 24 October 2023 confirming that the Tribunal had granted 14 days for the review applicant to provide additional information in relation to the review, and that the information was due on 31 October 2023. The Tribunal confirmed that the Tribunal had also sent an invitation to the review applicant to provide written comments or responses pursuant to s.359A of the Act, which were due on 3 November 2023. The Tribunal advised that all responses would be due on 3 November 2023, but requested the review applicant identified which information is (A) the written comments or responses to the information provided pursuant to s.359A of the Act, and which is (B) the additional post hearing information. The tribunal further requested that the review applicant send the responses in separate clearly identified emails to the Tribunal so there is no miscommunication.

    Invitation pursuant to s.359A of the Act

14. The Tribunal advised that the review applicant had provided the Tribunal with a copy of the two Department decision records dated 16 July 2019 which recorded that “ the [visa] applicant has also presented a school document from Kolfe Keranio Sub City Woredo 7 Addis Tessfa Primary School. Background checks were conducted using the school document to verify the applicant’s claims. These checks have revealed that the applicant was enrolled at the school on 26/8/2009 EC (Ethiopian Calendar) by Momina Mohamed, and that he is no longer a student at that school having ceased his studies in the same year, 2009 EC. A natural justice letter was sent in regards to the fact that the evidence suggests the applicant’s mother enrolled him in school on 26/08/2009 EC, whilst her death certificate states that she died on 20/01/2007.”

15. The Tribunal provided further particulars of the information obtained by the Department when it verified the document from the school. The particulars provided were as follows:-

    (i) the Department received written answers provided to the Australian High Commission in Nairobi from the Kolfe Keranio Sub City Woredo 7 Addis Tessfa Primary School recording the date of the visa applicant’s first enrolment at the school as 26 August 2009 EC;

    (ii) Momina Mohamed was listed as the guardian;

    (iii) no relationship was declared between the guardian and the applicant;

    (iv) the school does not have current direct contact with the parents;

    (v) the age of the applicant at the time of first enrolment was 15 years;

    (vi) the visa applicant is not currently enrolled and was last enrolled in the year 2009 EC;

    (vii) the school issued the document and the information in the document matches the information in the school records.

16. The Tribunal explained that the relevance of the information is that the school records show the visa applicants were enrolled in the year 2009 EC, their mother was listed as a guardian, and the deaths certificate provided in relation to the application for the orphan relative visa records that the visa applicants’ mother had been deceased for over two years at the time of enrolment. The Tribunal advised that if the Tribunal relied on the information provided by the school to the Department via the Australian High Commission in Nairobi it could not also accept the information contained in the death certificate as being correct.

17. Further in the letter sent to the review applicant pursuant to s.359A the Tribunal advised of the consequences of the Tribunal relying on the information provided by the school in the written information provided to the Australian High Commission in Nairobi, would be the Tribunal would not accept as genuine and correct the information provided in the visa applicants’ mother’s death certificate recording that she died on 20 January 2007 EC. The Tribunal advised that if it relied on the information provided by the school, the Tribunal would find that the visa applicants’ mother was alive at the time the school made the records in the year 2009 EC, and therefore the death certificate is not a reliable document and the evidence before the tribunal that the visa applicants’ mother is deceased may not be reliable evidence. If the Tribunal is not satisfied that the visa applicants’ mother is deceased the Tribunal may not be satisfied that the visa applicants meet the requirements of orphan relative in reg 1.14(b), and this would be the reason or part of the reason for not being satisfied that the visa applicants meet the requirements of cl.117.211 and for affirming the decision under review.

18. The review applicant provided his response and comments in writing by way of a submission from the representative dated 3 November 2023.

19. The applicant’s representative submits that the letter from the Kolfe Keranio Primary school dated 14 February 2019, which was included in the evidence from the visa applicants, stating they were enrolled up until 2017 (Gregorian calendar) is consistent with the information provided from the school stating the students were last enrolled in 2009 (Ethiopian calendar). The representative also submits that the information provided by the school does not record that the visa applicants’ mother enrolled the students but that she was listed as the guardian. The representative submits that this may be due to historical records from previous enrolments that the school records have not been updated.

20. I accept the submission that the information provided by the school does not record that the visa applicants’ mother enrolled the visa applicant Hassan Kelifa Sonesa; the information does record that she was listed as his guardian.

21. The Tribunal interprets the representative’s submission as relying on the evidence of the visa applicants and the older brother that they commenced at the primary school aged eight years of age, and that the representative relies on incorrect information being recorded in 2009 EC by the school that the visa applicants’ mother is still their guardian, and this information had not been corrected since the death of the visa applicants’ mother on 20 January 2007 EC.

22. The representative submits that this is consistent with the information provided pursuant to s.359A . However, the Tribunal notes that the information provided by the primary school to the Australian High Commission in Nairobi is that the school recorded the date of the visa applicants’ first enrolment at the school as being 26 August 2009 EC. The information provided records at the time of this first enrolment that the visa applicants’ mother is recorded as their guardian.

23. The Tribunal must clarify that the letter provided by the visa applicants with the application for the visa dated 14 February 2019 related only to the visa applicant Hassan Kelifa Sonesa, and the verification report from the primary school provided to the Australian High Commission also only related to the visa applicant Hassan Kelifa Sonesa. In the s.359A letter from the Tribunal to the review applicant, the Tribunal has used the words “visa applicants”, when the words “visa applicant” would be technically correct. However the Tribunal is satisfied that there has been no procedural unfairness as a consequence, as the essence of the information is whether at the time of the enrolment and attendance at school in 2009 EC, the information can be relied upon as confirming or indicating that the visa applicant’s or visa applicants’ mother was deceased or alive.

    Assessment of the evidence

24. I have considered whether there may have been an error in the information provided by the school, and whether there had been previous enrolments at that same school by the visa applicant, as claimed in their evidence, and which is the basis of the representative’s submission in his response to the information.

25. I note that the review applicant has not provided any further information from the Kolfe Keranio Sub City Woredo 7 Addis Tessfa Primary School, either in the form of the original untranslated letter, a copy of that untranslated letter, or a further document confirming the information provided in the translated letter dated 14 February 2019. The Tribunal is not prepared to rely on letters that cannot be confirmed, where the original and untranslated letter has not been provided or the information cannot be substantiated by providing similar information from the same source.

26. The Tribunal has also assessed the oral evidence given by the two visa applicants and the visa applicants’ older brother. The Tribunal finds the oral evidence of the two visa applicants and their older brother to be limited, evasive and not reliable as evidence of the death of the two parents.

27. The Tribunal did not receive any further information, evidence or documents from the review applicant after the hearing, despite the request for time in which to provide further information from the review applicant’s representative, and the Tribunal allowing time for the review applicant to provide further information, evidence or documents that are relevant to the review. The tribunal did not receive a request for an extension of time to provide the further information. The tribunal extended the time for the post hearing responses from 31 October 2023 to 3 November 2023, so all responses from the review applicant were due on the same day.

28. The Tribunal has carefully assessed the limited and unreliable oral evidence before it in relation to the death of the visa applicants’ parents. The Tribunal has assessed and balanced the written evidence before it. The Tribunal finds the evidence provided to the Australian High Commission from the Kolfe Keranio Sub City Woredo 7 Addis Tessfa Primary School that the visa applicant Hassan Kelifa Sonessa was first enrolled on 26 August 2009 EC, his age at the time of that first enrolment was 15 years and his mother was recorded as his guardian to be reliable evidence. After considering the oral evidence before it, and the information provided by the primary school to the Australian High Commission, the Tribunal finds that it cannot rely on the translated letter from the school dated 14 February 2019 without the original untranslated letter being provided, or a similar report being provided from the school. Further the Tribunal finds it cannot rely on the death certificate recording that the visa applicants’ mother died on 20 January 2007 EC. The Tribunal concludes that the death certificate must not be a reliable document The Tribunal is satisfied that the visa applicants’ mother was in fact not deceased at the time the visa applicant Hassan Kelifa Sonesa was enrolled at the primary school on 26 August 2009.

29. The Tribunal does not accept the oral evidence before it that the visa applicants’ mother is deceased. The Tribunal does not accept the death certificate in relation to the visa applicants’ mother is a reliable document.

30. For these reasons the Tribunal is not satisfied that the visa applicants cannot be cared for by their mother at the time of application, as the Tribunal is not satisfied that the visa applicants’ mother is deceased, of unknown whereabouts or permanently incapacitated.

    Conclusion

31. Accordingly, the Tribunal is not satisfied that the two visa applicants meet the requirements of reg 1.14(b) met at the time of application.  

32. Given the findings above, the Tribunal is not satisfied that the two visa applicants meet the requirements of cl.117.211.

33. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

34. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    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.