Genet (Migration) - [2021] AATA 4593

Genet (Migration) [2021] AATA 4593 (12 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mesfin Danile Genet
VISA APPLICANTS:  Ms Helen Akalu Aynalem
Ms Mesker Akalu Aynalem
CASE NUMBER:  1834900
HOME AFFAIRS REFERENCE(S):          2016047264 OSF2016047264
MEMBER:M. Edgoose
DATE:12 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 12 November 2021 at 4:30pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – late issuance of father’s death certificate – refusal to take up paternal responsibility – testimony from church leader – progress of Red Cross tracing service – visa applicants being cared for by family – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14
CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 13 October 2016. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 11 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tedla Wanaw, a support worker and church member, and Ms Fikerte Kifle, the review applicant’s wife. The Tribunal notes that Mr Tedla Wanaw is the review applicant’s former representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.
Although suspended by the Office of the Migration Agents Registration Authority, Mr Tedla Wanaw has continued to make submissions to the Tribunal on the review applicant’s behalf. On 30 September 2021, the Tribunal received two email submissions from Mr Tedla Wanaw on behalf of the review applicant which included a number of attachments. Each of the email signatures said Mr Tedla Wanaw, representative. Given this, it is clear to the Tribunal that Mr Tedla Wanaw has continued to represent and make submissions on the review applicant’s behalf despite being suspend by the Office of the Migration Agents Registration Authority. Mr Tedla Wanaw’s actions…

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.

Continue reading Genet (Migration)

Details

AGLC: Genet (Migration) [2021] AATA 4593
Case: [2021] AATA 4593
Decision Date: 12 November 2021

CaseChat Overview and Summary

This matter concerned an appeal to the Migration Review Tribunal regarding the refusal of Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative). The visa applicants were seeking to migrate to Australia as orphan relatives of an Australian relative, Mr. Mesfin Danile Genet. The core of the dispute revolved around whether the applicants met the definition of an "orphan relative" as defined by the Migration Regulations 1994.

The Tribunal was required to determine two primary legal issues. Firstly, whether the visa applicants were an orphan relative of an Australian relative at the time of their visa application and continued to meet this criterion at the time of the decision. Secondly, the Tribunal had to consider whether the applicants could not be cared for by either parent because each parent was dead, permanently incapacitated, or of unknown whereabouts, as stipulated by regulation 1.14(b).

The Tribunal affirmed the delegate's decision to refuse the visas. It found that the applicants did not meet the definition of an orphan relative. While the applicants claimed their father died on 7 June 2005, his death certificate was not issued until over 10 years later, leading the delegate to place minimal weight on this document. The Tribunal also noted inconsistencies in the sponsor's previous declarations regarding the father's employment and financial status. Crucially, the Tribunal interpreted "permanently incapacitated" in regulation 1.14(b) to mean an indefinite impairment of a parent's capacity to care for a child, not merely a refusal or unwillingness to do so. Given the lack of satisfactory evidence regarding the parents' inability to care for the children, the criteria for the Subclass 117 visa were not met.

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 EVIDENCEIs the visa applicant an orphan relative of an Australian relative? 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. ‘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 of the Regulations. In the present case, Mr Mesfin Danile Genet, is the relevant Australian relative. For the reasons below, the visa applicants were not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicants are not an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is not met, and does not continue to be met at the time of decision.No parental care – reg 1.14(b) Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J. Given the limited information the Tribunal has referred to each of the delegate’s decisions in this matter. The Tribunal notes that the delegate’s two decisions are similar, and both decisions reached the same conclusion. The visa applicants’ claim their father, Daniel Habtemariam Gurum passed away on 7 June 2005. However, the father’s death certificate was not issued until 4 November 2015, over 10 years after the father’s claimed death. The delegate placed minimal weight on the death certificate given the period of time between the claimed death of the father and the issuance of the death certificate. According to the delegate’s decisions, the sponsor (review applicant) in this matter claimed that the visa applicants’ father was killed on 7 June 2005 in a car accident in Addis Ababa and that the visa applicants’ mother, the review applicant’s claimed sister, lived with his parents. During the processing of the review applicant’s application to migrate to Australia in 2007 he was interviewed by the Department. The review applicant declared in his application to Australia that the applicants was his dependant and that the applicant’s mother was Semenyate Gebremariam. The review applicant further declared that Semenyate Gebremariam had a husband who is a labourer and is not on a high income and that is why he, the review applicant, was providing funds to assist with upkeep of the applicant.

Decision

Reasons for decision

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