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

1. 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).

2. 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.

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.

4. 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.

5. 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.

6. 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 while suspended have had no bearing on the outcome of this matter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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.

9. ‘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.

10. 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)

11. 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.

12. 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.

13. 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.

14. On 27 July 2018 a natural justice letter was sent to the review applicant regarding the information contained in his visa application. The review applicant responded to the delegate stating the above interview occurred 11 years ago and that he feels now that he may have misunderstood the interviewer’s questions. The review applicant informed the delegate that the visa applicants’ father was a labourer with insufficient income and the visa applicants’ father refused to take up the paternal responsibility. The review applicant claimed that he may have misunderstood the specific question. At the Tribunal hearing the review applicant claimed that he did not have an interpreter at the time, and he did the interview by himself. Cumulatively, the delegate considered the review applicant’s responses to the interview carried out in 2007 that the visa applicants’ father is not deceased. Although a form of death certificate was submitted, the delegate was not satisfied the visa applicants’ father was actually deceased.

15. On 29 September 2021, the Tribunal received two email submissions from Mr Tedla Wanaw, a witness in this matter and the review applicant’s previous representative. Attached to these emails was a number of attachments including an apparent death certificate for the claimed father, a copy of a letter in a language other than English and its translated version, a letter from the Red Cross, a statutory declaration from the review applicant, Mr Mesfin Danile Genet, and receipts for nine money transfers between February 2020 and August 2021. 

16. Given the finding in the delegate’s decision, the Tribunal turned its attention to the claimed death certificate of the claimed father of the visa applicants. The Tribunal considers this to be a copy of the same death certificate that was submitted to the Department at time of the visa application. The Tribunal has the same concerns regarding the claimed death certificate as the delegate. At hearing, the review applicant claimed that death certificates are not issued at the time of death but only when they are required. According to the death certificate submitted, the claimed father of the visa applicants died due to an accident on 7 June 2005, however, the death certificate that has been submitted to both the Department and the Tribunal was not issued until 4 November 2015, over 10 years after his claimed death. Given the period of time between the claimed death of the father and the issuance of the claimed death certificate the Tribunal gives this document minimal weight.

17. A letter dated 23 January 2019 from a Church Administrator provided the original letter and a translated copy to the Tribunal. The subject of the letter was Issuance of Evidence of the Late. That Daniel, the son of Mrs Gadisse Ayana had died on 7 June 2005 due to the occurrence of a car accident and that he had been buried on 8 June 2005. Although the letter mentioned a date of death, the letter made no reference regarding a formal death certificate to support this claim being issued at the time. The Tribunal further notes that within this letter no mention was made regarding the visa applicants having any children, family or anything about the visa applicants’ mother. The review applicant claimed at hearing that his letter only explained the death and burial of the claimed father and nothing else. Although this might be the case, the Tribunal gives this document minimal weight.

18. The Tribunal has given regard to the letter from the Australia Red Cross dated 10 May 2018, that was submitted to the Tribunal via email on 29 September 2021. The letter indicated that the review applicant had made several enquiries regarding the location his sister. The initial tracing request opened on 19 July 2017 with the Australian Red Cross, followed by a further tracing request transmitted to the International Committee of the Red Cross in Khartoum, Sudan, for consideration on 6 October 2017. Finally, a confirmation email was received from the ICRC Khartoum that the case had been received and is being actioned. As of the date of this letter the case remains open with no news of the sought person by either the enquirer or the ICRC Khartoum. The review applicant informed the Tribunal that he does not have a current letter from the Red Cross and that he has not heard from them since 10 May 2018. Given that this letter is over three years old and no current submission has been made regarding the claimed mother of the visa applicants, the Tribunal places limited weight on this document. The Tribunal considers that the whereabouts of the mother is unknown.

19. The Tribunal has given regard to the Statutory Declaration dated 29 September 2021 that the review applicant submitted to the Tribunal prior to the hearing. The review applicant stated that:

    I refer to attached relevant documentation and declare that my claims remain true and correct. 

    The Tribunal notes that the review applicant has provided a chronology of events regarding his and the visa applicants’ family situation. Although the review applicant has made a number of claims in his statutory declaration, he admits to the Tribunal that there are family members in the home country available to look after the visa applicants, however they are choosing not to do so. The review applicant informed the Tribunal at hearing that the guardians of the visa applicants are his father and stepmother. Given this, the Tribunal considers the visa applicants are being cared for in their home country by family. Based on this evidence the Tribunal considers the whereabouts of the mother is unknown.

20. On 10 November 2021, one day before the scheduled hearing, the review applicant made several further submissions via email. The submissions were the school records for the visa applicants and several money transfer receipts that had been submitted previously. The Tribunal considers the information submitted is not relevant to the matter before it and for this reason gives the submissions minimal weight. 

21. Mr Tedla Wanaw informed the Tribunal that he has known the review applicant for a very long time and the arrangements that he has made regarding the visa applicants. The review applicant has provided the visa applicants with a very good education and supported them. Mr Wanaw informed the Tribunal that he knows them well due to attending church together and that he knows that the review applicant is concern about the current situation in Ethiopia. The Tribunal gives Mr Tedla Wanaw’s oral evidence some weight, given his knowledge of the family and the situation.

22. Ms Fikerte Kifle, the review applicant’s wife, told the Tribunal that her husband, the review applicant, had been waiting for a long time to have this opportunity and that it was before COVID-19 she last saw them in person. She further added that she is ‘very happy that the visa applicants are doing very well and that I wanted to raise them as my children as I don’t have any of my own. I am very happy that I have supported them and raised them’. Her final comment to the Tribunal was that she misses the children. The Tribunal gives Ms Fikerte Kifle’s oral evidence some weight given her familiarity with the visa applicants and their situation.

23. Based on the limited evidence available, the Tribunal is not satisfied the visa applicants’ parents are either dead, permanently incapacitated or of unknown whereabouts.

24. Accordingly, reg 1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

    Has the applicant been adopted by the Australian relative?

25. 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.

26. There is no evidence before the Tribunal that the visa applicants have been adopted by their Australian relative.  Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

27. Given the findings above, cl 117.211 is not met.

28. The Tribunal finds that the visa applicants does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. It follows that cl 117.221 is not met.

29. 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

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

    M. Edgoose
    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.