Gebremeskel Gebreselasie (Migration)

[2019] AATA 4790

Gebremeskel Gebreselasie (Migration) [2019] AATA 4790 (26 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nevi Gebremeskel Gebreselasie

VISA APPLICANT:  Master Henok GEBREMESKEL GEBRESELASIE

CASE NUMBER:  1701561

DIBP REFERENCE(S):  2015075511 OSF2015/075511

MEMBER:Kate Millar

DATE:26 April 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 26 April 2019 at 6:03pm

CATCHWORDS

MIGRATION ­– Child (Residence) (Class AH) visa – Subclass 117 (Orphan Relative) visa – applicant’s mother is living and is not permanently incapacitated – inconsistent and unconvincing evidence –decision under review affirmed

LEGISLATION

Migration Regulations 1994, r 1.14, Schedule 2, cls 117.211

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Nevi Gebreselasie is an Australian citizen.  He wants to sponsor his brother Henok to come to Australia, and Henok applied for an orphan relative visa on 3 September 2015.  His application was refused as a delegate of the Minister for Immigration found Henok was not an orphan relative of Mr Gebreselasie as their mother, Ms Aster Abera Temesghan, is alive and living in Eritrea.  The delegate did not accept their mother was permanently incapacitated to provide care to Henok.

2. The issue before the Tribunal is whether Henok is an ‘orphan relative’ of Mr Gebreselasie as defined by the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations). Of the aspects of the definition of orphan relative, in issue in particular is whether his mother is permanently incapacitated to provide care.

3. Mr Gebreselasie appeared before the Tribunal on 31 January 2019 to give evidence and present arguments, and was represented in relation to the review by his registered migration agent. The Tribunal also received oral evidence from Henok and his mother Aster Temesghan. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The visa applicants applied for the visas on 3 September 2015. 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.

6. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria include cl.117.211 which requires the applicants to be orphan relatives, as defined by r.1.14 of the Regulations, of an Australian relative or is not an orphan relative only because the applicant has been adopted by the Australian relative.

7. To meet the requirement in cl.117.211 that the applicants are orphan relatives of an Australian relative, Henok must be:

   ·Related to Mr Gebreselasie; and

   ·Not have turned 18 years of age; and

   ·Not have a spouse or defacto partner; and

   ·Cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

   ·There must be no compelling reason to believe the grant of the visa would not be in the best interests of the applicant.

8. The issue in the present case is whether Henok cannot be cared for by either parent because each of them is dead, permanently incapacitated or of unknown whereabouts.  In this case Henok’s mother is living, and the issue is whether he cannot be cared for by her because she is permanently incapacitated.  

9. 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.

10. In this case, at the time of the application Henok was sixteen years old, and the type of care a child of this age requires must be considered to see if his mother was permanently incapacitated to provide this care as well as Henok’s particular care needs.  The Tribunal considered the physical care that is required, such as food, clothing and housing as well as any other need for care that may result from his age or particular circumstances.   Incapacity can arise from a number of factors including the person’s medical conditions, and mental illness and cultural factors and the Tribunal considered any reason proposed by Mr Gebreselasie, Henok and Mrs Temesghan on why Mrs Temesghan could not provide care and did not limit itself only to medical incapacity

11. Mr Gebreselasie said that after the birth of Avana his mother has been unwell and has had several surgeries.  He said that Henok could not live with his mother because she as sick and could not look after him. 

12. Henok’s mother lives with his sister Avana in Eritrea.  Avana is approximately 14 and suffers from epilepsy.  Mr Gebreselasie said he did not sponsor Avana because he did not think he would be able to care for her adequately. On being asked why Henok’s mother could care for Avana but not Henok, he said that the maid looks after Avana.  He said he mother suffers back pain but is able to instruct the maid on what to do.  As the care needs of a 16 year old without a disability may be lesser than a 14 year old with epilepsy, this weighs against Mrs Temesghan being permanently incapacitated to care for Henok.  The ability of Mrs Temesghan to instruct others to assist with the care of the children may, in circumstances where physical tasks can be performed by other, be sufficient to provide care to the children. 

13. A discharge notice was provided from 2012 stating Aster Temesghan had a cholecystectomy and hysterectomy and was discharged requiring one month of rest.

14. In his interview with officers of the Department, Henok said Mrs Temesghan had two operations in 2013, and that after the operations his relatives had helped at home.  Henok said at interview his mother was better after the last surgery, and was able to care for him and his sister Avana. 

15. Mr Gebreselasie said he read the typed record of interview to Henok who acknowledges he did say he was told his mother and sister were good, however Mr Gebreselasie denies saying to Henok that his mother and sister were good, or that their mother was in good health and caring for Avana as she was not.

16. In speaking to the Tribunal, Henok acknowledged he did say she had operations to the Department, but she was not fully recovered.  He could not say in which way she had not fully recovered.    He acknowledged he said his mother could look after his sister, but said his mother and sister were in fact not well.  He said he responded that his mother could care for him and his sister because he was frustrated and depressed.  I did not find this explanation for his responses at the interview convincing, and find it more likely that Mrs Temesghan had recovered from the surgery to an extent where she could care for Henok and Avana. 

17. [Information deleted]. 

18. Mr Gebreselasie said the last time Henok saw his mother was in 2015 when he arranged for her to fly to Ethiopia.  He said at that time she was able to catch a plane and get on and off the plane. 

19. A further medical discharge was provided at the hearing stating that Mrs Temesghan had an operation in 2018 for peptic ulcer disease.  It states she presented in a bad condition and needed to stay home and take care of herself until advanced therapy is done.  It states she is unable to continue her usual activities. 

20. Mr Gebreselasie was given a further opportunity after the hearing to provide any other medical evidence of his mother’s incapacity.  He provided a medical certificate dated 5 February 2019 which states Aster Abera Temesghan is a patient who had cholecystectomy for a gall bladder stone.  It states she still has dyspeptic symptoms and severe right flank pain for which she was coming and going, and was found to have a right renal stone.  It states she is to have regular check-ups for the descent of the stone.  

21. I am not satisfied that the medical evidence before me establishes that Mrs Temesghan has a permanent incapacity, or that any incapacity she suffers renders her incapable of providing care.  Mrs Temesghan cares for a younger child who has epilepsy, with the assistance of others. 

22. As Henok was a teenager at the time he left Eritrea, it is possible he required care other than food, shelter and clothing, Mr Gebreselasie was asked what care Henok required that his mother could not provide.  Mr Gebreselasie said his mother was sick and need someone to look after her, and that is why Henok left.  He said the servant cares for his sister Avana and not his mother.   

23. On being asked what specific tasks his mother could not do, Mr Gebreselasie said she does nothing and everything is done by the servant.  On being asked specifically what was wrong with his mother, he said she does not have any health at all, is always sick and vomits blood.  This reflects medical evidence as to her gastric symptoms but does not explain whether this condition is permanent, or what care Henok required that Mrs Temesghan was unable to provide. 

24. In giving evidence Henok said that before he went to Ethiopia he lived with his mother, his sister and his older brother.  On being asked if he had any problems living with his mother and sister, he said because his mother was sick she could not look after him.  On being asked what she could not do that he needed her to do, he said she is extremely sick and could not do anything.  He did not know what she suffered form at that time.  He said he left Eritrea when he was approximately 14 years old. 

25. Henok said his mother did have an operation when he was in Eritrea and she was better than before, but could not care for him and Avana at all. 

26. Mrs Temesghan gave evidence that she had surgery in 2010 and 2011 and has been in hospital for treatment and she is now very sick.  On being asked her illness, she said infections, and she has been told not to move anywhere because of infection because of her operations.  She said she was very sick before Henok left Eritrea with infections of her bones and body.  She said she saw a doctor who tells her she has infections.  She said she currently sees a doctor at Sembel Hospital.  The medical report provided after the hearing from Sembel Hospital does not state she suffers from infection, but does suffer from a renal stone. 

27. I did not find the repeated assertions from Mr Gebreselasie, Henok and Mrs Temesghan that Mrs Temesghan is very sick convincing as to her incapacity to care for Henok.  At the time of the visa application Henok had left home and travelled to Eritrea.  I am not convinced this is because his mother was unable to care for him, and find it more likely this was because of the compulsory military service required. 

28. As the medical evidence before me does not establish that Mrs Temesghan has a permanent incapacity, or that the nature of her medical conditions means she is unable to care for Henok.  As she does provide care for a younger sibling with a disability I am not satisfied she was at the time of the application, or is at the time of this decision, unable to care for Henok due to a permanent medical incapacity.  It is not suggested she is otherwise permanently incapacitated to provide care.

    Has the applicant been adopted by the Australian relative?

29. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

30. As it has been found that Henok is not a orphan elative as his mother is living and is not permanently incapacitated, he does not meet this requirement. 

    Conclusion

31. As Henok does not meet the definition of orphan relative in r.1.14, he is not the orphan elative of an Australian relative and does not meet cl.117.211(a). He does not meet cl.117.211(b) as he does not meet the requirement to be an orphan relative for reasons other than being adopted.

32. As a result 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

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

    Kate Millar
    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.