Hailu (Migration)

[2022] AATA 4611

Hailu (Migration) [2022] AATA 4611 (11 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yonas Hailu

VISA APPLICANTS:  Miss Solyana Gebrehawerya Gebrezgabher
Miss Fiyory Hailay Tsegay

REPRESENTATIVE:  Mr Emete Joesika (MARN: 0100301)

CASE NUMBER:  2109577

HOME AFFAIRS REFERENCE(S):          BCC2018/643402

MEMBER:Stephen Conwell

DATE:11 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 11 November 2022 at 4:45pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – secondary visa applicants – dependents and members of the family unit – nieces of the sponsor – Guardianship orders – adoption arrangements – no evidence adoption order has been registered – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.311, 309.321; rr 1.03 - 1.05, 1.12

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

2. The visa applicants (the secondary applicants) applied for the visa on 7 February 2018. The delegate refused to grant the visas on 22 June 2021 on the basis that the visa applicants (the applicants) did not satisfy the requirements of cl 309.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 309.311 of Schedule 2 relevantly requires the applicants each be a member of the family unit of DEBALKE, Rahel Alemenew (the primary applicant/family head) at the time of application or decision.

3. The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

4. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing via Microsoft Teams.. The Tribunal exercised its discretion to hold the hearing in this manner. The parties raised no objections as to conducting the hearing in this manner.

5. The sponsor appeared before the Tribunal on 3 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Efrem Gilsilase and Mr Yared Hailu, the sponsor’s brothers. The secondary applicants did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

6. The sponsor was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Consideration of claims and evidence

8. The issue in this review is whether the secondary applicants are members of the family unit of Ms DEBALKE, Rahel Alemenew, the primary visa applicant and satisfy cl 309.311 or cl.309.321(b).

   Are the secondary applicants members of the primary applicant’s family unit?

9. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

10. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

    ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

11. The primary visa applicant, Ms DEBALKE, Rahel Alemenew, has been taken to be the family head. The sponsor is Mr Yonas Hailu. The secondary applicants claim to be the sponsor's nieces. It follows that neither secondary applicant is the spouse or de facto partner of the family head, therefore the Tribunal finds that Regulation 1.12(2)(a) is not met in either case.

12. Regulation 1.12(2)(b) states that a person is a member of the family unit of another person {the family head) if the person is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner). The Tribunal has considered whether the secondary applicants meets the definition of Child as defined in Section 5CA(1)(a) of the Act. The Tribunal notes that the  two secondary applicants are respectively, 11 years old and 17 years old at the time of this decision.

13. ‘Dependent child’ is defined in reg 1.03 of the Regulations. Essentially, the child or step-child must not be engaged, married or in a de facto relationship and, have not turned 18, or if they have turned 18, must be ‘dependent’ on the parent within the meaning of reg 1.05A, or be incapacitated for work due to loss of bodily or mental functions. 

14. As mentioned above, the two secondary applicants claim to be the sponsor's nieces. It follows that that neither secondary applicant is the biological child of the family head or of the sponsor. Therefore neither of the secondary applicants satisfy Section 5CA(1)(a) of the Act.

    Have the visa applicants been adopted by the sponsor?

15. The Tribunal then considered whether the sponsor had formally adopted the secondary applicants.  Section 5CA(1)(b) of the Act provides that someone who is an adopted child of a person, within the meaning of the Act, is a child of that person, provided that the requirements of the relevant regulations are met.

16. Regulation 1.04 provides as follows regarding adoption:

    (1)A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

    (a)formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

    (b)formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

    (c)other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

    (2)  For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

    (a)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; and

    (b)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, having regard to the nature and duration of the arrangements; and

    (c)  the Minister is satisfied that:

    (i)    formal adoption of the kind referred to in paragraph (1)(b):

    (A)was not available under the law of the place where the arrangements were made; or

    (B)was not reasonably practicable in the circumstances; and

    (ii)    the arrangements have not been contrived to circumvent Australian migration      requirements.

17. The Tribunal is satisfied that no adoption arrangements have been made pursuant to the laws of a State or Territory of Australia, consequently Regulation 1.04(1)(a) does not apply to the claims of the secondary applicants.

18. The evidence before the Tribunal includes a certified translated decision from the Tigray National Regional Central Zone Adwa Woreda City Court stating that the Court has approved the sponsor, Yonas Sisay HAILU to be the legal guardian of both secondary applicants and to take care of them until they respectively turn 18 years of age. The order was made on 9 June 2017 therefore the secondary applicants were, respectively, 11 and 5 years of age at that time. The Tribunal notes that the Court Order records the secondary applicants ages to have been, respectively, 12 and 6 years of age. This appears to be incorrect, given their stated dates of birth. However the Tribunal is prepared to accept this as typographical errors or perhaps innocent miscalculations rather than misleading or fraudulent conduct.

19. The Tribunal had regard to the country information with respect to adoption in Ethiopia. The legal requirements include that an agreement of adoption must be endorsed by the High Court in Addis Ababa or by the highest court in the region. The process also involves the obtaining approval from the Department of Women and Children Affairs. As noted in the decision record, adoption orders issued from regional or lower level courts are not legally recognised under Ethiopian law in cases where the adoptive parents are foreign nationals. The sponsor is an Australian citizen of Ethiopian origin and was thus able to obtain guardianship orders in respect of the secondary applicants though they were not in his direct care nor having ever resided with him. Guardianship orders are issued by lower level courts based at Woreda office.

20. However the Tribunal concurs with the delegate in finding that Guardianship orders should not be accepted as evidence of adoption. The Court Order provided initially with the application is therefore not acceptable as evidence of adoption.

21. In response to a Departmental request to provide a satisfactory adoption document, an adoption court order from the Tigray Central Zone Adwa City District Woreda/Court was presented to the Department in October 2019. A seal from the Tigray Supreme Court is also claimed to be on the document. The document was dated 16 August 2019. However, there is no evidence before the Tribunal of this adoption order having been registered with the Ministry of Women, Children and Youth or that it had been issued by a Federal First Instance Court, as is required.

22. This matter was heard by this Tribunal more than 12 months after the delegate’s decision. During this time the sponsor has had the opportunity to submit further, more current evidence in support of this merits review. However this has not occurred, nor have there been any submissions concerning any ongoing efforts to register the Guardianship orders as adoption orders with Ethiopia’s Ministry of Women, Children and Youth.  The Tribunal is satisfied that that formal adoption processes are available in Ethiopia and were accessible to the sponsor.

23. Having regard to the above facts in relation to the secondary applicants, the Tribunal not satisfied that the secondary applicants have been adopted in accordance with Regulation 1.04. Consequently, the Tribunal finds that the secondary applicants do not satisfy Section 5CA(1)(b) of the Act.

24. The Tribunal finds that neither secondary applicant is a child or step-child of the family head and therefore neither of them is a dependent child of the family head. The Tribunal is therefore not satisfied that either secondary applicant was a dependent child of the family head at the time of application or is a dependent child of the family head at the time of this decision. The Tribunal finds that the secondary applicants do not satisfy Regulation 1.12(2)(b).

25. Having considered all of the evidence the Tribunal is not satisfied that either secondary applicant is a member of the family unit of a person who satisfies the primary criteria in subdivision 309.21. It follows that neither secondary applicant meets the requirements of clauses 309.311 or 309.321 in Schedule 2 to the Regulations.

26. For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visa.

    decision

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

    Stephen Conwell
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …