Habtu (Migration)

[2018] AATA 1606

Habtu (Migration) [2018] AATA 1606 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Ghebrehiwet Habtu

VISA APPLICANT:  Miss Saron Mhari Habtu

CASE NUMBER:  1801905

DIBP REFERENCE(S):  2017015241 OSF2017/015241

MEMBER:Kira Raif

DATE:16 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.211 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 16 May 2018 at 10:04am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Whether the visa applicant is a “relative” of the review applicant – Consistent evidence as to identity – Whether the applicant cannot be cared for by a parent – Mother deceased – Father unable to be located or otherwise incapable of providing care – Whether grant of visa is in best interests of the child – No reason to suspect grant would be adverse to interests of child – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.14, Schedule 2, cls 117.211, 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 3 December 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 is a national of Eritrea, born in September 2008. She applied for the visa on 9 January 2017. The delegate refused to grant the visa because the applicant did not meet cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was an orphan relative of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses nominated by the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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.

5. 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 and cl. 117,221.

6. 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.

7. ‘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.

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

8. The visa applicant claims to be the niece of the sponsor. The review applicant provided to the Tribunal a copy of the primary decision. It indicates the applicant claimed in her application that her father Mr Mhari Ghebrehiwet Habtu moved to Israel in 2010 and has been detained since September 2014. The visa applicant states that her mother Ms Zewdi Gebrihwet passed away in Sudan in March 2016.

9. The delegate noted that a copy of the visa applicant’s birth certificate identifies her parents and the sponsor declared his brother (the visa applicant’s father) in his own visa application made in 2012 but the delegate also notes that the original birth certificates for the visa applicant and the sponsor have not been provided, so the delegate was not satisfied the visa applicant was related to the sponsor.

10. The delegate also notes that the applicant did not provide evidence of her father’s incarceration since 2014. In relation to the mother’s death, the delegate notes that an unendorsed copy the death certificate was provided but not the original certificate endorsed by the Ministry of foreign Affairs. The delegate notes that while the sponsor claims to have obtained the death certificate (issued in 2016) in Sudan, the sponsor did not depart Australia between 2012 and 2017.

11. The primary decision record indicates that when interviewed, the guardian could not explain why the child’s baptism certificate was issued on the day of birth or the unusual step of repatriating the mother’s body from Sudan to Eritrea, for which no evidence was provided.

12. In his written submission to the Tribunal the review applicant states that neither he nor his brother have birth certificates. The review applicant provided a copy of a letter from UNHCR in Israel confirming that the child’s father arrived in Israel in December 2010 and the review applicant states they have lost contact and he has asked UNHCR to assist in locating the brother. The review applicant states that the father has no working rights in Israel and is incapable of caring for the children. The review applicant states that since the death of the children’s mother in March 2016, he is the only one caring for the children with the help of a guardian but the guardian cannot do that permanently. The review applicant provided evidence of financial transfers.

13. The review applicant produced to the Tribunal the original death certificate for the children’s mother and evidence of repatriation of the body to Eritrea, as well as the death certificate issued in Eritrea and evidence of burial. The review applicant explains that he did not obtain the death certificate in person but it was sent to him by the guardian and he did not travel to Sudan for the document. With respect to the date of the baptism certificate, the review applicant suggests it may have been a mistake. The review applicant also provided statements in support of the visa applicant’s application.

14. The visa applicant was born in September 2008 and is under the age of 18. The Tribunal is satisfied the visa applicant does not have a partner.

15. With respect to the relationship with the visa applicant, the review applicant told the Tribunal that he fled Eritrea illegally so he cannot obtain the birth certificate and the same situation applied to his brother. Neither he nor his brother have birth certificates and they cannot obtain birth certificates because of their illegal departure from Eritrea. The review applicant said that he asked for the children’s birth certificates and they approached the church and were issued with the baptism certificates. The review applicant offered to undertake DNA testing to prove the relationship. The Tribunal acknowledges the delegate’s concerns but places weight on the fact that the review applicant declared his brother in his own visa application made in 2012. The Tribunal is also mindful that the visa applicant’s birth certificates show the same surnames. On balance, the Tribunal is satisfied that the children’s father is the review applicant’s brother and the Tribunal therefore accepts that the visa applicant is the niece and a relative of the review applicant. The visa applicant meets r. 1.14(a).

16. The review applicant told the Tribunal that the visa applicant’s mother died of cancer but he had no other details. The Tribunal acknowledges that few documents were provided with the primary application but additional evidence is before the Tribunal. The review applicant provided to the Tribunal the original of the mother’s death certificate, as well as burial records. The Tribunal accepts that the visa applicant’s mother has passed away in 2016.

17. The review applicant’s evidence is that his brother left Eritrea in 2009 and moved to Israel in 2010 to seek asylum. The review applicant said he spoke to his brother around May 2017. His brother told him he was in the detention centre since 2014 because he had no residence papers and he did not know how long he would be detained for. The review applicant said he had contacted UNHCR which confirmed that the father lives in Israel but they could not contact him and the father had no working rights in Israel. The review applicant said he cannot contact his brother and has no way of locating him.

18. The Tribunal acknowledges the letter from UNHCR dated 21 January 2018 which confirms the review applicant’s evidence that the child’s father could not be located. The Tribunal does not accept the review applicant’s suggestion that the father remains in the detention centre because the UNHCR letter indicates it had contacted the Ministry of the Interior and the father could not be located. In the Tribunal’s view, if the father was detained, the Ministry of the Interior would have knowledge of him. Nevertheless, the Tribunal accepts the evidence of the review applicant that he has made an effort to locate his brother and has not been able to locate his brother with the help of UNHCR. The Tribunal is satisfied that at the time of this decision, the father’s whereabouts are unknown.

19. At the time of application, the review applicant’s evidence is that the father was incarcerated and had no work rights and had capacity to care for the children. The Tribunal found the review applicant to be a credible and truthful witness. The Tribunal accepts, also having regard to the letter from UNHCR, that the visa applicant’s father moved to Israel where he had no work rights and no financial capacity to support the children. The Tribunal also accepts that if the father was incarcerated at the time of the application, with little or no prospect of obtaining residence rights and work rights in another country and no intention of returning to his home country, there was an impairment of the father’s power, capacity, ability or possibility to care for his child, which was likely to be indefinite.

20. On balance, the Tribunal is satisfied that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal is satisfied the visa applicant meets r. 1.14(b).

21. The review applicant’s evidence to the Tribunal is that he has been providing financial support to the visa applicant since her mother passed away and evidence of such support has been provided to the Tribunal. The review applicant’s evidence is that he is very supportive of the children, as is his wife, and he will bring them up as his own. The review applicant said he has accommodation and the financial means to support the visa applicant. The review applicant confirmed he has no criminal record. The Tribunal is satisfied there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant. The Tribunal is satisfied the visa applicant meets r. 1.14(c).

22. The Tribunal finds that the visa applicant meets r. 1.14 and is an orphan relative of the sponsor. The visa applicant meets cl. 117.211 and cl. 117.221.

    Conclusion

23. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.211 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member