Gebreslassie (Migration)

[2018] AATA 4377

Gebreslassie (Migration) [2018] AATA 4377 (28 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tewolde Tsegabrhan Gebreslassie

VISA APPLICANTS:  Mr Semere Brhane Hailu
Mr Sahlit Brhane Hailu

CASE NUMBER:  1603627

DIBP REFERENCE(S):  OSF2014/044660

MEMBER:Justin Owen

DATE:28 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 28 September 2018 at 10:53am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – subclass 309 (Spouse (Provisional) –dependent children – visa and primary applicant are cousins – small age difference between applicants – evidence of financial support of family members – questions about legal adoption of visa applicants – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.04, 1.05A, 1.12 Schedule 2 cls 309.211, 309.311

CASES
Al Naqi v Minister for Immigration & Anor [2007] FMCA 874
Huynh v MIMIA [2006] FCAFC 122

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 10 February 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 18 November 2014 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.311 and cl.309.221 because as secondary applicants they were not members of the family unit of the primary applicant as defined in the Migration Regulations at Reg 1.12 at the time the visa application was made and at the time of decision.

4. The review applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant Mrs Sellamawit Gebretsadik and witness Ms Rahina.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Minister’s delegate found that the visa applicants were not members of the family unit of the primary applicant at the time the visa application was made and at the time of decision.  

7. The Tribunal has taken into consideration all the evidence in the Departmental file OSF2014/044660, the Tribunal’s file 1603627 and the oral evidence presented at the Tribunal’s hearing.

   What is the background of the case based on all the evidence?

8. On 18 November 2014 the primary applicant Mrs Sellamawit Tesfay Gebresadik applied for a 309/100 Partner visa, sponsored by Australian citizen Mr Tewolde Tsega Birhan Gebreslassie (the review applicant).  The visa applicants applied as dependents of the primary applicant.  It is claimed that the visa applicants are the sons of the primary applicant’s sister.  On 10 February 2016 the application was refused by the delegate.  An application for a review of this refusal was subsequently made to the Tribunal. 

   Review

9. The applicants must be dependent on the primary applicant in order to meet the definition of ‘dependent’ as outlined in r.1.05A (a): Reg. 1.05A. The definition of ‘dependent’ requires the applicant is and has been for a substantial period immediately before that time wholly or substantially reliant on the primary applicant for financial support to meet her basic needs for food, clothing and shelter. In addition, the applicant’s reliance on the primary applicant for this financial support must be greater than her reliance on any other person or source of support. Cl.309.311 requires that the applicants be members of the family unit of the primary applicant at the time of application. Cl.309.321 requires that the applicants be members of the family unit of the primary applicant at the time of decision.

10. The review applicant attended the hearing with the primary applicant who has been granted her 309 visa and arrived in Australia on 4 June 2016.  The review applicant said he was living in Ascot Vale with the primary applicant and their three children aged 3 years old, 2 years old and 4 months old respectively. 

11. The review applicant said that the visa applicants had lived in the household of the primary applicant since 2010 but the primary applicant took full responsibility for them from the end of 2011 until the primary applicant departed for Australia in 2016.  He claimed that he and the primary applicant are still supporting them today. 

12. The review applicant said that prior to marriage the primary applicant was living with the visa applicants in Axom prior to his marriage to the primary applicant in 2014. The review applicant said that the primary applicant and the visa applicants had been living in rental property.  He said said they lived in Adihaki in 2014 and 2015. The review applicant said that he, the primary applicant and the visa applicants then moved to Adiha in 2015 prior to his return to Australia.  He said the visa applicants remain there today.

13. The review applicant says he sends the visa applicants money for food and rent.  He claims it is from both himself and the primary applicant.  He said he earned his money as a taxi driver.  He said the primary applicant about a month and a half ago started receiving Centrelink so she could also contribute.  The review applicant said there was no regular amount or time period when they send the visa applicants money, it was sent as needed.  In the last two years the review applicant claimed that they had sent around $5,000 to $6,000.  The Tribunal asked the primary applicant how much had been provided to the visa applicants over the past five years.  She said she couldn’t tell exactly. 

14. The review applicant said the primary applicant began looking after the visa applicants in 2011.  The Tribunal asked the review applicant about the care she had provided the visa applicants.   He said from what he had been told that when she was in tenth grade at school her father travelled to Sudan to look for his daughter.  From then she had to look after the children as she was the oldest in the house.

15. The Tribunal asked the review applicant how it was that she looked after the visa applicants financially from 2011 until 2014 when she married the review applicant.  The review applicant said that the primary applicant’s father told their neighbour to also help look after the children when he departed for Sudan.  Distant relatives in Australia were also helping with the care of the visa applicants at that time by sending the primary applicant money.  The primary applicant claims these relatives assisted her financially until she met and was married to the review applicant.    The primary applicant claims that the visa applicants themselves have no other family members whatsoever to assist them offshore.   

16. The Tribunal noted the evidence the review applicant submitted at the hearing of seven international money transfers from the primary applicant to the elder of the visa applicants.  Made between August 2016 and August 2017 the transfers amount to around US $6,000. 

17. The Tribunal noted that the primary applicant is 23 years of age whilst the eldest of the visa applicants is 21 years of age.  The review applicant said that the visa applicants have no spouses or partners. The review applicant confirmed this.   

18. The review applicant said that the visa applicants are not working.  He also said that they are not at school.  The primary applicant said that the visa applicants have not been at school since 2012.  He said that when the visa applicants had not been at school since the 2011 school year.  The primary applicant confirmed this. 

19. The primary applicant said that the visa applicants are unemployed.  The Tribunal noted that the eldest of the visa applicants turns 22 years of age at the end of the year.   He said that the eldest of the visa applicant is unemployed due to his lack of education qualifications.  He said that he had tried to get the eldest visa applicant a job in carpentry but it had not worked out. The primary applicant confirmed this, saying he had worked there for maybe one month.   The primary applicant confirmed that the visa applicants had essentially neither worked nor studied the past six years.           

20. The Tribunal asked what the visa applicants were doing with their time.  The review applicant confirmed that the eldest visa applicant had not worked or studied the past six years.  He said that in Ethiopian culture the tradition was someone was supported until they were married.  He said the eldest visa applicant was too old for some jobs. 

21. The review applicant and the primary applicant both confirmed that the visa applicants do not have any mental or physical impairment.  The review applicant said that they might feel some stress because of their life in Ethiopia.  He said they are not receiving any help from anyone else there apart from the review applicant and the primary applicant. 

22. The review applicant claims they visa applicant’s use the funding he provides goes towards rent, clothing, lighting, transport and all expenses.  The review applicant said that the visa applicants were well behaved. 

23. The review applicant said that the visa applicants were keen to study and improve their lives.  The Tribunal asked the review applicant why the visa applicants had not studied when school was generally available free of charge in Ethiopia.  The review applicant said that even though education may be ‘free’, there were still fees for books, uniforms, registration and other costs which made it expensive.  The primary applicant agreed there were no school fees but a range of other costs and she and the primary applicant simply couldn’t afford the costs.

24. The Tribunal asked who previously assisted the visa applicants with the payment of school fees.  The primary applicant said it had been her father. 

25. The review applicant said that he had no other family in Ethiopia and neither did the primary applicant. 

26. The Tribunal asked about evidence of the visa applicants living with the primary applicant.  The review applicant said that the primary applicant had told him so at the start of their relationship.  He said that the primary applicant had told him she didn’t want to marry as she was looking after the visa applicants and wished to study.  He said that after plenty of talking and after convincing the primary applicant that he would financially support the visa applicants, the primary applicant changed her mind concerning marriage. 

27. The Tribunal noted the claims that the primary applicants father – who was looking after the visa applicants – disappeared at the end of 2011. He said no one has seen the primary applicant’s father since.   The Tribunal asked what evidence or reports did the primary applicant have of this claimed disappearance.  The review applicant said he left for Sudan to look for his daughter,  He said that to obtain any report concerning this disappearance he would have to go to Sudan which he did not have the time or money to do so. The primary applicant provided similar evidence. 

28. The Tribunal noted that the primary applicant applied for the Partner visa in November 2014.  The Tribunal noted that the primary applicant did not get custody of the visa applicants until January 2015.  The Tribunal asked why there was such a long delay if they were genuinely dependent upon the primary applicant.  The review applicant said in Ethiopia anyone, including a neighbour can raise a child without legal authority.  The review applicant said that there was no need for the primary applicant to obtain legal authority.  The review applicant said that they commenced the process of having custody granted when they commenced the process of applying for a Partner visa.  The primary applicant agreed with this evidence, stating that originally she had no intention to ever migrate to Australia so there was no need to obtain legal custody of the visa applicants until that point. 

29. The Tribunal asked the primary applicant about the formal process of adoption in Ethiopia.  The primary applicant said there was no formal protocol and you simply raise dependents as your own children.  The primary applicant said that she and the review applicant were recognised as the parents of the visa applicants.    

30. The review applicant said the visa applicant’s mother died in 2003.

31. The Tribunal asked about the visa applicant’s siblings.  The review applicant said there are three siblings but they don’t know where they are.  One sibling, Helen went to Sudan.  The other two are with their mother (they have a different mother) after some family issues. The primary applicant said that she has three siblings.  She said one sibling Helen travelled to Sudan for work purposes and has passed away.  The primary applicant said she had last seen any of her siblings in 2011.  The primary applicant said that she did not know where her other siblings were.  She said the other two siblings had travelled to Eritrea with their mother who had travelled there to visit her own father.  The primary applicant said that no one else she knew had seen them.      

32. The Tribunal asked the review applicant why the parents of the primary applicant were not listed as deceased on the primary applicant’s visa application in 2014.    He said that they put ‘unknown’. 

33. The Tribunal asked the review applicant about the awarding of custody of the visa applicants to the primary applicant in 2015.  The review applicant said the adoption was to allow her to raise the visa applicants as her own children. 

34. The Tribunal asked the review applicant if the primary applicant and he were recognised as the parents of the visa applicants.  He replied that they were as they were raising them as a parent would. 

35. The Tribunal noted the primary applicant was only a few years older than the older visa applicant.  The Tribunal asked if it was customary in Ethiopia for a young woman to ‘adopt’ or have custody of a male cousin only a few years younger.  The review applicant said in Ethiopia not only family but the neighbours can look after someone.  He said that when the visa application was made the visa applicants were underage.  The review applicant said it was acceptable for a young woman to look after the younger family members.   The primary applicant said that the visa applicants had no one.  She said she had no choice but to take them on as her responsibility.  She stated that when her father departed for Sudan her father left her in charge of the household together with asking their neighbours to assist.  The primary applicant said the neighbour provided some support to the visa applicants, but he had his own children and his own financial needs and responsibilities.   

36. The Tribunal asked what the tradition in Ethiopia in caring for children was.  The Tribunal asked if the usual state of affairs was for a dependent to be looked after by their older relatives.  The review applicant said that in Ethiopia many people were farmers.  He said that if there was no one else then the person that was left had a responsibility to look after the dependents.  The Tribunal asked if a situation like this – a young woman looking after her cousins just a few years younger – was a usual situation.  The review applicant said it happened quite often even if not recognised legally.  The primary applicant said it was the responsibility of the older relative to look after the younger family members.  The primary applicant said it was not uncommon in Africa for underage people to take on the caring role for younger family members. 

37. The Tribunal asked the primary applicant that, given the age of the visa applicants now, why they were not able to look after themselves today.  The primary applicant said it was hard to find employment in Ethiopia and had lost their parents at a young age and didn’t have anyone else.            

38. The primary applicant said that the visa applicants lived in her household from the end of 2011.  She said she had received her 309 visa and arrived in Australia on 4 June 2016.  She said the visa applicants had no one but herself and she provided for them financially and morally.  She said that she has three young children and only recently received Centrelink benefits.  She said with that and the review applicant’s wages as a cab driver, they supported the visa applicants. 

39. The Tribunal asked the primary applicant for evidence of where the visa applicants lived at the time of the visa application in 2014 and the period previous.  She stated that she has an ID card as to where she was living in Adihaki.  She said that maybe the neighbours that were renting there could confirm.  The Tribunal asked for any other evidence the primary applicant had from prior to November 2014 that the visa applicants were living with her at that time. She said the people that she rented the property she lived in knew this as did her neighbours from that time. 

40. The Tribunal asked the primary applicant to discuss the support she had provided the visa applicant.  She replied that no one else looked after the visa applicants but her.  She said she tried to look after them like an older sister.  She said she tried to look after them morally and tried to encourage them.   She said that her father brought the visa applicants to her home in 2010.  She said he enrolled them at school in 2011.  The primary applicant said her father went looking for her sister Helen in 2011 and that was when she commenced looking after the visa applicants.

41. The Tribunal asked the primary applicant, given she was underage and at school, how she looked after, cared and was responsible for the visa applicants.  The review applicant said it was a difficult time but she had distant relatives in Australia on her mother’s side that would send money.  The review applicant also claimed that she worked on weekends in a cafeteria.

42. The primary applicant claims that she together with the review applicant are the only ones to provide for the visa applicants today.  The Tribunal noted the evidence of financial transfers and mobile telephone records the review applicant had provided the Tribunal.  The Tribunal asked if there the review applicant had any other evidence of the support she provided the visa applicants.  The primary applicant mentioned the photographs they had previously provided of themselves with the visa applicants.

43. The Tribunal attempted to contact both of the review applicant’s nominated witnesses.  Neither answered the Tribunal’s telephone calls.  The Tribunal at the review applicant’s request made further requests and contacted the applicant’s Ms Rahina.  She informed the Tribunal that she had known the primary applicant since 2014.  She said that as she understood the visa applicants were under the care of the primary applicant.  She said that she understood the primary applicant provided the visa applicants with rent and other financial help.                

    FINDINGS AND REASONS

44. For the purposes of the provisions of cl.309.321, r.1.12 and r.1.05A in this case the “family head” is the primary applicant.  The Regulations distinguish between a person and his or her spouse.  Therefore, the visa applicants must establish that they are dependent on the primary applicant (as defined by Regulation 1.05A) in order to satisfy the provisions of clause 309.321 and which is required for the grant of a Partner (Provisional) (Class UF) visa.

1. Regulation 1.05A requires that the visa applicant must be wholly or substantially reliant on the primary applicant for financial support to meet their basic needs for food, clothing and shelter. It also requires that this degree of reliance has to have been for a substantial period immediately before the time that the application is being determined and that such reliance of financial support on the primary applicant is greater than their reliance on any other person or source of financial support.

2. Following the Full Federal Court decision of Huynh v MIMIA [2006] FCAFC 122 the proper construction of ‘dependent’ under the current definition in r.1.05A does not carry any implication of the notion of necessity or lack of choice. Therefore, subject to the other requirements of the regulation, there is no need to prove more than reliance in fact.

3. Based on the oral evidence of the review applicant the Tribunal accepts that the applicants (as nephews of the primary applicant) are relatives of the family head or of a spouse or de facto partner of the family head. The Tribunal furthermore accepts that neither of the applicants have a spouse or de facto partner. The Tribunal is therefore satisfied that r.1.12(1)(e)(i) has been met.

4. The Tribunal notes the claims that have been made concerning how the visa applicants came to be in the care of the primary applicant’s father.  The Tribunal notes that a death certificate was provided for the visa applicant’s mother and the visa applicant’s father disappeared in 2005.  The visa applicants were subsequently enrolled in school by the primary applicant’s father and taken into his care.  The Tribunal notes the evidence that the primary applicant’s father was declared as guardian of the visa applicants at the time of enrolment.  The Tribunal accepts that the visa applicants were in the care of the primary applicant’s father who was also the grandfather of the visa applicants.      

5. The Tribunal notes the review applicant’s claim that he has essentially funded the visa applicant’s household and provided for all the needs of the applicants since meeting and marrying the primary applicant in 2014.  The review applicant stated that the primary applicant only started receiving Centrelink payments a month and a half ago.  She had no other source of regular income until this time.   In oral evidence he asserted that he had provided and was continuing to provide financial support to the applicants for their rent, clothing and shelter. The Tribunal notes that in some circumstances, it may be open to the Tribunal to make a factual finding that a person is “dependent” on the family head, notwithstanding that funds are being provided by the family head’s spouse.  In Al Naqi v Minister for Immigration & Anor [2007] FMCA 874 Riethmuller FM found that “broad, practical judgment” is required in assessing notions of dependence and support and that this will sometimes necessitate identification of the underlying source of support and the reasons for provision of that support. His Honour took the view that “support for a person’s relatives, from their spouse, can be considered support by them if their spousal relationship is an essential or substantial part of the reason that the support is provided”. In this case, the review applicant’s evidence is that his financial support for the visa applicants is contingent upon his being married to his wife the primary applicant. His support for the visa applicants is related to his spousal relationship with the primary applicant. The Tribunal accepts that any financial support the review applicant has provided and currently provides the visa applicants is on the basis of his spousal relationship with the primary applicant.

6. The Tribunal notes the primary applicant’s claims that the visa applicants have been dependent upon her since the claimed departure of her father (the visa applicant’s grandfather) in late 2011 on an alleged quest to locate his daughter in Sudan.  Whilst the review applicant met, married and began cohabitation with the visa applicant in 2014, the consistent claim is that the primary applicant – with limited assistance from some relatives from her maternal side of the family and some neighbours – has had full responsibility for the visa applicants for now almost seven years. 

7. The Tribunal has considered this assertion and the claim that the review applicant’s father vanished in late 2011. The Tribunal asked both the review applicant and the visa applicant to provide some evidence that might corroborate this claim.  The parties have been unable to do so.  Both have claimed it is too difficult to obtain any evidence from Sudan in relation to the claimed disappearance of the primary applicant’s father.  They have claimed obtaining such evidence is too costly and too onerous.  The Tribunal is not satisfied with this response.  There is no evidence before the Tribunal confirming the death of the primary applicant’s father or the disappearance of her sister.  There are no missing person reports lodged with any authorities or agencies, either in Ethiopia or Sudan.  The review applicant provided the delegate with a claimed classified from the Addis Zemen Magazine of 9 November 2014 where the primary applicant applied for the disappearance of her father to be confirmed (D1, Folio.128) and the claimed court order from Tigray National Regional State Court confirming his disappearance, based upon the testimony of the primary applicant.  The Tribunal is not prepared to accept the primary applicant and review applicant’s claims on the basis of these documents.  The Tribunal notes that this advertisement was not placed until a week before the lodgement of the visa application in November 2014, over three years since the primary applicant’s father apparently disappeared. The court order is dated 17 December 2014, after the lodgement of the visa application.  The Tribunal accepts the challenges in securing evidence of such tragedies in this part of the world.  Nevertheless there is a lack of any evidence beyond the assertions of the review and primary applicants concerning such claims.  Similarly, the only evidence before the Tribunal concerning the lack of family or other support the visa applicants have in Ethiopia is assertions of the review applicant, the primary applicant and the witness at the hearing Ms Rahina who expressed an opinion based upon what she had been told by the primary applicant. The Tribunal is not satisfied on the evidence before it that the primary applicant’s father – who happens to also be the visa applicant’s grandfather – is in fact missing.  The Tribunal considers it more likely that the visa applicants continue to be in the care of their grandfather or another family member.  The Tribunal is not prepared to accept in the absence of any meaningful corroborative evidence that the review applicant’s father is missing and deceased.    

8. The Tribunal notes that the review applicant’s evidence of financial support to the visa applicants is only for the twelve month period between August 2016 and August 2017.  The Tribunal accepts that the review applicant and the primary applicant have provided some financial support to the primary applicant’s nephews, the visa applicants.  The Tribunal is prepared to accept that these funds may have been used for food, clothing and shelter.  The Tribunal however does not consider this to be evidence that the visa applicants are either wholly or substantially reliant on the primary applicant for financial support to meet their basic needs for food, clothing and shelter. The Tribunal considers the corroborative evidence of the primary applicant’s support of the visa applicants – either directly or through the review applicant – to be lacking.  The Tribunal does not consider their reliance on the primary applicant for this financial support is greater than their reliance on any other person or source of support.  The Tribunal is not satisfied that the primary applicant’s father is either missing or deceased and is not convinced that the visa applicants are not in fact under the care and support of their grandfather, the primary applicant’s father. 

9. The Tribunal has taken into account the firm assertions of the primary applicant and the review applicant that the visa applicants are dependent upon the primary applicant as family head.  At the hearing the Tribunal requested corroborative evidence of the visa applicants’ reliance upon the primary applicant prior to her arrival in Australia in 2016.  The Tribunal specifically asked for evidence as to the visa applicants’ cohabitation and reliance upon herself.  The primary applicant responded in oral evidence that their neighbours and the people they rented their property from in Ethiopia could do so.  No corroborative evidence of this claim was provided to the Tribunal.  The Tribunal has noted the correspondence dated 16 April 2015 from the ‘Government of Tigray Regional State Mekelle Town Administration Hawelti Sub-City Office Administration that states the visa applicants at that time were residing with the primary applicant (D1, Folio. 134).  Based upon the available evidence the Tribunal is not satisfied the visa applicants were living with the primary applicant at the time of application. The Tribunal notes however that the primary applicant and the visa applicants living together is not a critical fact.   Even if the visa applicants were residing with the primary applicant, the Tribunal is not satisfied that the visa applicants were dependent upon the primary applicant at the time of application.   The Tribunal is not convinced on the available evidence that the visa applicants were wholly or substantially reliant upon the primary applicant as dependents at the time of application.    

10. Whilst not satisfied the visa applicants meet r.1.12(e) as dependent relatives of the primary applicant, the Tribunal has also considered whether the visa applicants meet r.12(1)(b) as dependent children of the primary applicant. At the time of application both the visa applicants were under the age of 18. At the time of decision only the younger visa applicant remains under this age.

11. The Tribunal has considered whether the visa applicants are dependent children of the family head as defined on r.12(1)(b).  The Tribunal notes that primary applicant’s submission that the primary applicant received custody of the visa applicants from the Ethiopian courts on 24 January 2015. 

12. ‘Adoption’ is defined in r.1.04. In ‘formal adoption’ the adopter must have assumed a parental role in relation to the adoptee; this must have occurred before the adoptee attained 18 years of age; and the assumption of a parental role occurred under certain arrangements, namely: formal adoption arrangements under Australian (or state) law; or formal adoption arrangements under foreign law, where the adoption results in the legal recognition of the adopter(s) as the parent(s), in place of the previously recognised parents.

13. The Tribunal notes the documentation before it concerning the granting of custody of the visa applicants to the primary applicant.  The Tribunal notes that the custody order is 23 January 2015, more than a month after the lodgement of the visa application.  Given the primary applicant claimed to have had responsibility for the visa applicants since 2011, the Tribunal found it unusual that custody was not sought and granted for some years.  The review applicant has claimed that legal custody is relatively unimportant in Ethiopia and there is widespread customary adoption instead.  The primary applicant and the review applicant have both claimed that the primary applicant was uninterested in legal custody as she originally had no plans to emigrate.  The Tribunal notes however that the parties claim to have first been in contact with each other in 2013 and then decided to marry by early April 2014.  Given the review applicant had already emigrated to Australia and was an Australian citizen, the Tribunal considers it highly likely that the primary applicant assumed her relationship with the review applicant would lead to her migration to Australia.  Given custody was not granted until after the visa application had been lodged, on the evidence before it the Tribunal is of the opinion that the application for custody was made entirely for migration purposes.  The Tribunal does not consider the granting of custody of the visa applicants to the primary applicant as persuasive evidence of their dependency and reliance upon the primary applicant, rather than this was an administrative action undertaken purely to boost the chances of a successful migration application.  Given the lack of corroborative evidence of the claimed relationship of dependency between the visa applicants and the primary applicant, the Tribunal gives the granting of legal custody little positive weight in determining a claimed dependent relationship.     

14. In relation to the question of adoption for the purposes of this review, the Tribunal notes that this visa application was lodged in December 2014 when both the visa applicants were under 18 years of age. The Tribunal however has noted that the primary applicant received custody of the visa applicants on 24 January 2015: after the lodgement of the visa application.  The primary applicant did not have legal custody of the visa applicants at the time of application. The visa applicants were not legally adopted at the time of application. 

15. The Tribunal therefore does not consider the visa applicants to have been formally adopted by the review applicant at the time of application.

16. The Tribunal notes that certain other arrangements entered into outside Australia that are ‘in the nature of adoption’ (i.e. customary adoption) can nevertheless meet the relevant criteria.   

17. Customary adoption is recognised where: the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter;  the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons; formal adoption was not available or not reasonably practicable in the circumstances; and the arrangements have not been contrived to circumvent Australian migration requirements.

18. The Tribunal notes that the legal pursuit of custody and formal adoption was available to the primary applicant.  The primary applicant indeed chose to avail herself of this option in January 2015 after she lodged her Partner visa application.   The Tribunal considers it was reasonably practicable for the primary applicant to utilise the processes of formal adoption of the visa applicants. 

19. The Tribunal furthermore notes the oral evidence of the primary applicant and the review applicant concerning the care and support they claim to provide the visa applicants and the primary applicant’s claim that she was raising the visa applicants. The Tribunal has considered this in the context of customary adoption under r.1.04. The Tribunal asked the primary applicant whether it was unusual for someone originally underage to essentially become responsible for her cousins that were just a few years younger than her. The Tribunal asked whether it was usual in Ethiopia for young people to take on this role and whether care and responsibility in such circumstances would usually pass to an older family member of friend. The primary applicant and review applicant claimed it was not uncommon. The Tribunal is not satisfied this is the case. Country information for Ethiopia states that it is usual for minors to be taken custody of by older relatives or neighbours in some circumstances. The primary applicant and review applicant have claimed in oral evidence that there is no family member or relative to do this but the Tribunal is not convinced of this assertion, particularly given the very limited corroborative evidence they have provided of this support at the time of application. Furthermore, given the Tribunal is not satisfied on the evidence before it that the visa applicants are without local family assistance in Ethiopia, the Tribunal is not satisfied that the visa applicants were reliant on the primary applicant for their basic needs at the time of application.

20. The Tribunal has considered the oral evidence of the review applicant and the primary applicant that the primary applicant only pursued formal custody of the visa applicants after she decided to emigrate to Australia. The primary applicant and visa applicant have essentially asserted to the Tribunal that legal custody was sought for migration purposes. The Tribunal have considered whether the visa applicants were adopted as defined in r.1.04. The Tribunal is not satisfied that at the time of application the visa applicants were formally adopted. The Tribunal considers that formal adoption was widely available and open to the review applicant during the period she claimed to have been responsible for the visa applicants. She chose not to avail herself of this. The Tribunal does not consider the visa applicants were dependent children of the primary applicant under r.1.12(b) at the time of application.

21. The Tribunal notes that the primary applicant claims to have been financially supporting the visa applicants since 2011.  She claims she did so initially with the assistance of some relatives and by working part-time until she met and married the review applicant.   The Tribunal notes the evidence the review applicant has provided of three Western Union receipts of monies paid by the review applicant to the elder of the visa applicants between August 2016 and August 2017.  Despite the limited evidence submitted, the Tribunal accepts that the review applicant has been providing the visa applicants with financial support on behalf of himself and the primary applicant.  The lack of corroborative evidence before the Tribunal means however this is more speculation than an assertion grounded in fact.  The Tribunal on the basis of the evidence before it is not satisfied that the funds the review applicant provides the visa applicants are being utilised for the food, clothing and shelter of the visa applicants.  The Tribunal accepts that there is a reasonable possibility this is the case.  The Tribunal is not however satisfied of this assertion.  The Tribunal furthermore is not satisfied that the visa applicant’s reliance on the review applicant or the primary applicant is greater than any reliance on any other person for financial support to meet their food, clothing and shelter.

22. The Tribunal notes that the older of the two visa applicants will soon turn 22 years of age.  The primary applicant and review applicant have claimed he has virtually never worked and has been out of the education system for six years.  The primary applicant and review applicant have claimed he does not suffer from any mental or physical impediment that would preclude him from working.  The Tribunal notes that the primary applicant is barely two years older from the visa applicant she claims is completely dependent upon herself.  She has claimed that until he is married he will be supported and he is now too old for some employment.  In the absence of further corroborative evidence, the Tribunal is not satisfied that the visa applicants – particularly the older of the applicants – is reliant upon the primary applicant.  Furthermore, the Tribunal has some doubts as to the level of assistance being provided to the applicants by other family members offshore which contributes to its not being satisfied that the applicants are wholly or substantially reliant on the primary applicant (through the review applicant) and their reliance upon the primary applicant (through the review applicant) is greater than their reliance on any other person or source of income.     

1. The Tribunal finds the paucity of corroborative evidence concerning the support the primary applicant as family head provided the applicants at the time of application to be of concern.  The evidence before the Tribunal of support from that period is negligible.  There are no financial statements or transfers before the Tribunal of any monies from the review applicant to the visa applicants.  The only corroborative evidence of payments being made to the applicants are the money transfers from the review applicant to the visa applicants over a twelve month period between 2016 and 2017.  The Tribunal notes that the applicant estimated he had provided about $5,000-$6,000 in the last two years.  In the absence of any corroborative evidence of financial contributions to the applicants (either directly or to the review applicant’s niece) beyond these receipts from 2016-2017, the Tribunal is not satisfied that he, on the basis of his relationship with the primary applicant, is providing the applicants with their basic needs for food, clothing and shelter and that the applicants are wholly or substantially reliant upon him.  The Tribunal is prepared to accept that the review applicant and the primary applicant are providing some assistance to the visa applicants and remain in contact with them as illustrated by the mobile telephone records the review applicant provided. 

2. The Tribunal accepts that the review applicant at the time of decision has provided and will continue to provide the visa applicants with financial support to assist with their living expenses in Ethiopia.   The Tribunal is not however prepared to accept that in December 2014 – when this application was lodged – and the period preceding, that the applicants were wholly or substantially reliant upon the primary applicant either directly or through the review applicant in meeting their basic needs for food, clothing and shelter.   There is no corroborative evidence before the Tribunal concerning the support the primary applicant provided the applicants directly at the time of application and the previous period in terms of meeting their basic needs for food, clothing and shelter.     On the limited available evidence before it, the Tribunal is not satisfied that the applicants were wholly or substantially reliant upon the review applicant at the time of application and for a substantial time immediately before the application.  The Tribunal is not satisfied that the applicants meet Regulation 1.12(1)(e)(ii) and (iii) at the time of application.  

3. The Tribunal notes the significant lack of corroborative evidence before it concerning the support the primary applicant – or the review applicant as her spouse – provided the applicants at the time of application and the period preceding for their basic needs for food, clothing and shelter.  The Tribunal furthermore is not satisfied that the applicants are without other family support for such needs in Ethiopia.  The Tribunal appreciates the challenges in obtaining evidence of the death of disappearance of family members.  The Tribunal however is not satisfied of this fact and subsequently cannot be satisfied the applicants are not receiving financial support for their basic needs from other family members.  The Tribunal is not satisfied that the applicants are members of the family unit of the primary applicant for the purposes of this visa application either as dependent relatives or as dependent children.    

4. The Tribunal does not on the evidence before it consider that at the time of application and the period before it, the applicants were wholly or substantially reliant on the primary applicant for financial support to meet their basic needs for food, clothing and shelter.  The applicant does not meet 1.05A (1) (a). 

5. 1.05A (1) may be also satisfied if the visa applicant is wholly or substantially reliant on the other person for financial support because the applicant is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions (1.05A(1)(b)).  There is no evidence of any incapacity and none has been claimed.  The review applicant and the primary applicant each confirmed in oral evidence that the visa applicants have no mental or physical impediments. No claim furthermore has been made.  The visa applicants do not meet 1.05A (1) (b).

6. The Tribunal is therefore not satisfied that the visa applicants are dependent upon the family head, the primary applicant as required under regulation 1.05A (1).   

7. As the Tribunal finds the visa applicants are not dependent on upon the family head, they also fail to meet regulation 1.12(1)(e)(iii).  The Tribunal is also on the evidence before it not satisfied that the visa applicants at the time of application were usually resident in the family head’s household.  Given the applicants do not meet regulation 1.12(1)(e)(ii) and (iii) they are not defined as a members of the family unit of the primary applicant for the purposes of regulation 1.12. 

8. The Tribunal also finds that the visa applicants do not meet the criteria of a dependent child as outlined in regulation 1.12(c) at the time of application. 

9. Clause 309.311 is a time of application requirement for the granting of this visa.  The Tribunal is not satisfied that at the time this visa application was lodged on 23 December 2014 and for a substantial period beforehand that the applicants were both wholly or substantially reliant on the review applicant for financial support to meet their basic needs for food, clothing and shelter; and their reliance on the review applicant was greater than any reliance on any other person or source of income for financial support to meet their basic needs for food, clothing and shelter: regulation 1.05A (1)(a)(i) and (ii).  Given the applicants at the time of application were not dependent on the family head or resident in the family head’s household at, they do not meet regulation 1.12(1)(e).  As they do not meet regulation 1.12(1)(e) at the time of application, they do not meet the definition of a member of the family unit under regulation 1.12.  The visa applicants also fail to meet the definition of dependent child under regulation 1.12(b) at the time of application.  As the applicants were not members of the family unit of the review applicant at the time of application, they do not meet cl 309.311.   

10. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

11. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Justin Owen
    Senior Member