Gizaw (Migration)

[2021] AATA 667

Gizaw (Migration) [2021] AATA 667 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Bethelhem Wossen Gizaw

VISA APPLICANT:  Mr Yosef Wossen Abegaz

CASE NUMBER:  1710470

DIBP REFERENCE(S):  OSF2015075008

MEMBER:David Crawshay

DATE:10 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 March 2021 at 10:41am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – specified relative – full or half-brother – no original birth certificates and inconsistent and inconclusive later documentation and written and oral evidence – DNA tests – unlikely to be half-siblings and very unlikely to be full siblings – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), rr 1.03(b), 1.14(a)(iii), Schedule 2, cls 117.111, 117.211(a), 117.221

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 13 March 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 April 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.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211.

4. The delegate refused to grant the visa because the visa applicant did not meet cl.117.211 or cl.117.221 of Schedule 2 to the Regulations. The delegate was not satisfied that the visa applicant was a relative of the review applicant.

5. The review applicant appeared before the Tribunal on 1 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The hearing was conducted as a telephone hearing owing to the ongoing COVID-19 pandemic.

6. The review applicant provided the Tribunal with a copy of the delegate’s decision.

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

   EVIDENCE AT HEARING

8. The Tribunal asked the review applicant the names of her parents, to which she replied that her father was Wossenu Gizaw and her mother was Elfinesh Alemu. The Tribunal asked the review applicant if she had a birth certificate to show her parentage. She replied that she did not. She was asked what identification document was used when she came out to Australia in 1998. She replied that she had a passport. She said that she did not otherwise remember how her uncle brought her here as she was young at that time.

9. The review applicant said that she was brought to Australia by her uncle, Abebe Abegaz Gizaw, who is the younger brother of Wossen Gizaw. She said that her uncle started caring for her at the age of four. She said that her mother left her in his care as she was very poor, and he offered a better future for her. She said that her mother and father knew each other from the same neighbourhood and had a “fling”. She said that her great-uncle stepped in and looked after her for two years after which she went to stay with her uncle at around age four.

10. The Tribunal asked the review applicant why the visa applicant had put down

    
    

    “Wossen Abegaz Gizaw” as the name of his father on his birth certificate (which was produced in 2013). She said that the visa applicant was using that name as he did not know who his biological father is. The Tribunal asked the review applicant when he started to use that name. She replied that he was using it since birth. It asked her again why he used her father’s name, she replied that his birth may have been a product of a rape, so his mother thought it might be better to use her family name.

11. The review applicant then said that the visa applicant changed his name when he began renting. She said that he wanted to use her family’s name because of her and because of the “conviction of family”.

12. The review applicant said that she first found out about the visa applicant in around 1999 when she visited her father in the USA for around two months. She said that he was talking to her great-uncle, who told her that the visa applicant might be her half-brother. She said that she did not ask questions at that stage.

13. The review applicant said that she came back to Australia, and then headed over to the USA again to live with her father for six years. This was from 2000 until 2006. During this time, she said she did not look to find the visa applicant because she had her own issues to overcome.

14. The review applicant said that her uncle went to Ethiopia to search for her half-brother in 2013 and found him. The Tribunal asked her if it was possible the visa applicant’s birth certificate might have been produced using information that was provided by her uncle. She replied that she thought the visa applicant’s baptism certificate was used to produce the birth certificate. The Tribunal asked her if she knew when he was baptised. She replied that baby boys are typically baptised around 40 days after birth in Ethiopia.

15. The review applicant told the Tribunal that, having discovered the existence of her step-brother, she was eager to work and she saved money for a few years. She said she went to Ethiopia in 2015 to visit the visa applicant, having asked her boss to grant her four weeks’ leave.

16. The Tribunal asked the review applicant what made her sure that the visa applicant was her half-brother. She said that when she went over to Ethiopia to visit him in 2015, he showed her a photograph of their mother. She said that the parties look a little bit like each other. She said that the visa applicant said that his mother told him about her.

17. The Tribunal asked about the role of Gidey Embay Mogos, who had been the visa applicant’s guardian. She said that she was a landlord in Addis Ababa and had rented out a residence to the visa applicant’s mother. She said that Ms Mogos’ husband is called

    
    

    Yosef Mohammed Mossa. She said that there is no familial relationship between the visa applicant on the one hand and Ms Mogos and her husband on the other hand. She said that the visa applicant’s mother left him when he was nine or 10 years old because she did not have much money and was struggling.

18. The Tribunal asked the review applicant if she still favoured undertaking a second DNA test. She replied very enthusiastically that she did. She said that she would not question DNA, and that she wants to fight to the end. She said that the process has left her very depressed. The Tribunal offered her the option of a DNA test. It told her of the process and about how she needed to pay for the test herself. She understood. It explained to her that the steps afterwards would depend on the results of the DNA test – if favourable to the review applicant, the Tribunal would convene another hearing to hear her claims in relation to the visa applicant being an orphan relative; if unfavourable to the review applicant, the Tribunal would send her a s.359A letter and may make a decision without a further hearing. The Tribunal foreshadowed a letter being sent to the review applicant with more information. It told her that she would need to respond to the Tribunal within the given timeframe if she required more time to organise the test.

19. The Tribunal then questioned the visa applicant.

20. It asked the visa applicant to name his parents. He replied that Elfinesh Alemu is his mother and Wossen Abegaz is his father. It asked him to clarify if these were his biological parents. He replied that he did not know who his biological father is.

21. The Tribunal asked the visa applicant who Gidey Embay Mogos is. He replied that she was the person who looked after him when his mother left. She gave him a room. He confirmed the name of her husband.

22. The visa applicant was asked if he has been known by any other name. He replied that he has not.

23. The visa applicant was asked when he found out about his relationship with the review applicant. He said that his mother told him about her when she cared for him before she went away. He said that his mother left him when he was 10 years old. He said that the review applicant came to visit him in Ethiopia in 2007. It was confirmed that this was the date in the Ethiopian Calendar, which corresponds with 2014/2015 in the Gregorian Calendar.

24. The review applicant was questioned on some seeming anomalies regarding the evidence of when the visa applicant changed his name. It pointed out that she had said the visa applicant had his current name since he was born due to the circumstances of his conception and the fact that it would be better to use her father’s name, but that she then said he changed his name when he was renting. She said that she was nervous when answering and that he had changed it later on in life for school documents because “he did not have anything before”. It was put to her that, in his answer to the Tribunal’s questions, the visa applicant said that he had not been known by any other name. The review applicant said that he got the name of “Yosef Wossen Abegaz” later on and never had an actual document. It was put to the review applicant that there might have been times when he would have needed to use his name before he attended school. The review applicant said that he was using the landlord’s name before then – so he was known as “Yosef Yosef Mohammed”. The Tribunal again put it to the applicant that the visa applicant said he was not known by any other name. The review applicant said that she was “not 100 per cent sure”.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether the visa applicant is an orphan relative of the review applicant.

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

26. 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.

27. “Orphan relative” is defined in r.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): r.1.03. In the present case, the review applicant claims to be the relevant Australian relative.

28. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is 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.

    Relative – r.1.14(a)(iii)

29. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. In this matter, the review applicant is an Australian citizen.

30. The delegate refused the application for visa based on the results of a DNA test conducted on 13 February 2017 through Genomic Diagnostics and witnessed in Ethiopia by officials of the International Organization for Migration (the first DNA test). The first DNA test found that it was unlikely the review applicant was related to the visa applicant as a biological half-sibling and extremely unlikely that the parties were related as biological full siblings.

31. A natural justice letter was sent to the visa applicant following receipt of these results. The review applicant responded on his behalf, and a copy of the letter was reproduced in the delegate’s decision. In the letter, the review applicant expressed her disappointment as she disputed the assessment. The review applicant said that the visa applicant had told her there was no case officer from Kenya present to witness the sample. She said that she strongly believed the multiple people attending for DNA testing on the day and no relevant officer to witness the collection contributed to the negative outcome. She said that she was willing to undertake the test once again. At various stages, she questioned whether mishandling of the samples or some human error had taken place.

32. The delegate stated that the review applicant has argued that the results of the first DNA test are not objective. The delegate said that, while the statements contained in her letter were taken into consideration when determining a person’s identity, he must give substantial weight to objective evidence which has been presented in the form of DNA testing. The delegate said that the sample collection was witnessed by an officer of the International Organization of Migration on behalf of the Department.

33. As above, the review applicant was asked at hearing whether she would still favour submitting to a further DNA test, to which she replied that she would. On the basis of this, on 1 June 2020 the Tribunal sent her request for DNA evidence letter. Samples were gathered from the review applicant in July 2020 and from the visa applicant in February 2021 and delivered to a testing laboratory accredited by the National Association of Testing Authorities.

34. On 23 February 2021, the Tribunal received the results of the second DNA test, which produced an identical result to the first DNA test. Again, the analysis of the result showed that it was unlikely the parties were related as biological half-siblings and extremely unlikely that the parties were related as biological full siblings.

35. On the basis of the results, the Tribunal sent a s.359A letter of the same date to the review applicant which relevantly provided as follows:

    As you are aware, you, Ms Bethelhem Wossen Gizaw and Mr Yosef Wossen Abegaz agreed to DNA testing to show that you are half-siblings. The Tribunal has now received the results of the DNA testing, a copy of which is attached.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·The DNA report concluded that it is unlikely that you Bethelhem Gizaw and Yosef Wossen Abegaz are related as biological half siblings.

    ·The DNA report also concluded that it is extremely unlikely that you, Bethelhem Gizaw and Yosef Wossen Abegaz are related as biological full siblings.

    This information is relevant to the review because if the tribunal relies on the DNA report, it may conclude that Mr Abegaz is not your half-sibling and therefore does not meet the definition of “orphan relative” for the purposes cl.117.211(a) of Schedule 2 to the Regulations.

    This would be the reason, or a part of the reason, to affirm the decision under review.

36. As at the date of this decision, which is after the due date for comment or response, no such comment or response has been received from the review applicant.

37. The Tribunal has had regard to all the information in front of it, including information on the Department and Tribunal files, the testimony of the parties at hearing and the post-hearing material comprising the results of the second DNA test.

38. The Tribunal finds that the familial claims made by the parties are difficult to substantiate from any of the information they have provided. For example, there are no contemporaneous birth certificates for either party and the evidence of the visa applicant’s name first being used is on a school report a number of years after his birth. Furthermore, the visa applicant’s birth certificate lists the review applicant’s father as his father, something that has been repeated in the visa application form. This is in spite of the review applicant stating that the parties were conceived by different fathers but born of the same mother. The Tribunal also points out that the review applicant gave conflicting information about when the visa applicant began using his current name – initially, she said that he had been using it since birth, but later said that he began using it when he was renting before eventually correcting herself and saying that it was used on school documents.

39. In light of these inconsistencies and the general lack of information, the best that can be said about the evidence in that it is inconclusive. The Tribunal accepts that this may be the case given that the review applicant has claimed that both she and the visa applicant have grown up for much of their lives without their biological parents. While these circumstances, on their face, are certainly not fatal to an application such as the present application, they do underscore the importance of having objective evidence which can be considered by the Tribunal when assessing a claim. A properly conducted DNA test offers one such measure to achieve this and must therefore be seriously considered and given due weight.

40. Accordingly, the Tribunal gives the results of the second DNA test substantial weight of an adverse nature. The results show that it is unlikely that the parties share a relationship of half-sibship. The results follow on from the first DNA test that yielded the exact same result at the Department stage. There is no evidence other than that the second DNA test was conducted properly and that its results are accurate. The Tribunal prefers this evidence over the written and oral evidence given by the parties.

41. Based on this evidence, the Tribunal is not satisfied that the visa applicant is the half-sibling of the review applicant or any other of the relationship types mentioned in (b) of the definition of “relative” under r.1.03 of the Regulations.

42. Accordingly, r.1.14(a)(iii) was not met at the time of application and does not continue to be met at the time of decision.

    CONCLUSION

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

44. The Tribunal finds that the visa applicant does not continue to satisfy the criteria 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.

45. 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

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

    David Crawshay
    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.