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

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.
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
To meet the requirement in cl.117.211 that the applicants are orphan relatives…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Gebremeskel Gebreselasie (Migration) [2019] AATA 4790
Case: [2019] AATA 4790
Decision Date: 26 April 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 117 (Orphan Relative) visa made by Henok Gebreselasie. The applicant sought to establish that he could not be cared for by either parent because each of them was either dead, permanently incapacitated, or of unknown whereabouts. The decision under review affirmed the refusal of the visa. The case was heard by Senior Member Kate Millar of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Henok Gebreselasie met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if Henok's mother was permanently incapacitated to the extent that she could not care for him, given that she was alive at the time of the visa application. The Tribunal also considered the care needs of a 16-year-old child and whether the mother's ability to instruct others to assist with care constituted sufficient provision of care.

The Tribunal reasoned that permanent incapacity refers to an indefinite or non-temporary impairment of a parent's ability to care for their child, not merely a refusal or unwillingness to do so. While Henok's mother had undergone surgeries and suffered from back pain, the Tribunal found the evidence inconsistent and unconvincing. It noted that the mother lived with Henok's sister, Avana, who has epilepsy, and that a maid cared for Avana. The Tribunal considered that if the mother could care for Avana by instructing a maid, this suggested she was not permanently incapacitated from providing care, particularly as Henok, at 16, may have had lesser care needs than a younger child with epilepsy.

Consequently, the Tribunal concluded that the criteria for a Subclass 117 visa were not met. The decision under review, which refused the visa, was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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. 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. 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. 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 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. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Kate MillarSenior MemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.14Orphan relativeAn 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.

Ratio Decidendi

Legal Principle Established

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