Kabeto (Migration)

[2019] AATA 1852

Kabeto (Migration) [2019] AATA 1852 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Workitu Geda Kabeto

VISA APPLICANT:  Mr Feyiso Mustefa Geda

CASE NUMBER:  1619495

HOME AFFAIRS REFERENCE(S):           OSF2015075471

MEMBER:Kira Raif

DATE:29 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2019 at 11:20am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – adopted child of the sponsor – nephew – no formal adoption – customary adoption – took responsibility to raise her brother's children in accordance with recognised custom – formal adoption available under the law of Ethiopia – reasonably practicable – cultural and financial barriers – custom of not pursuing formal adoption – orphan relative – death certificates purportedly for the visa applicant’s parents – not genuine – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.04, 1.14; Schedule 2, cls 101.211, 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 and Border Protection on 19 October 2016 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 Ethiopia born in May 2005. The visa applicant applied for the visa on 18 August 2015. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicant was the child of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 3 January and 7 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

   Is the applicant an adopted child of the sponsor?

5. The review applicant provided to the Tribunal a copy of the primary decision record, which contains the following information.

6. The visa applicant does not claim to be a biological child of the sponsor. He identified his mother as Dero Abi and his father as Mustefa Geda, claiming that they were deceased. The visa applicant claimed in his application to be an adopted child of the sponsor Workitu Geda Kabeto. The sponsor indicated in the sponsorship form that the visa applicant was an adopted child and that the adoption took place before she became an Australian permanent resident in October 2012. In her own visa application, the sponsor declared the visa applicant as her nephew. The visa applicant stated his two siblings were also adopted by the sponsor and they also made applications for the Child visas.

7. The delegate wrote to the visa applicant requesting him to provide evidence of adoption. The visa applicant replied by stating there was no formal adoption but the sponsor took responsibility when their father died. The visa applicant stated that their relatives and the community see the aunt as his mother.

8. The delegate found that there was no formal adoption and the visa applicant did not meet r. 1.04(1)(a) and (b). With respect to customary adoption, the delegate noted that formal adoption was available in Ethiopia and no claims have been made that it was not reasonably practicable in the circumstances. The delegate was not satisfied the applicant met r. 1.04(1)(c) and the criteria for adoption.

9. The Tribunal has considered whether the visa applicant is an adopted child of the sponsor, for the purpose of cl. 101.211(c)(ii) and the Adoption visa. Adoption is defined in r. 1.04. There is no evidence that the visa applicant was formally adopted and the parties do not claim that formal adoption had taken place. The Tribunal is not satisfied the requirements of r. 1.04(1)(a) and (b) are met.

10. With respect to customary adoption, the review applicant submits that they are from the Koromo community, which is marginalised and one of the indigenous people in Ethiopia. They live in a regional area and ‘the law does not serve them’. The court is located far away, in the capital city about 250km away from where they live. The review applicant states that at present, the law is more accessible but eight years ago, authority was not available to them. The review applicant states that the difficulty was not only with the distance to travel to the main city for adoption, but also with the language, as their language was banned. Also there was no need for a formal adoption because it is customary that when a child’s parents pass away, the next relative takes care of the children. They had no money to travel and no money to arrange the adoption and it was not necessary to organise it because the community accepted her as the parent of the children.

11. In her written submission to the Tribunal of 27 May 2019 the review applicant repeated these claims. She states that they were not aware that legal adoption existed at the time of adoption and there was no need for it. The review applicant refers to the cultural and financial barriers at the time and states that there was no plan to go abroad. The review applicant states that the persecution of her family by the government made it hard to get documents from the government as they used to be blamed as the enemies of the state and lived in fear. The review applicant states that it is not common to have legal adoption in the area where she lived and there was no government infrastructure for travelling long distance and accessing the service. The review applicant states that traditional adoption existed before the Ethiopian state and was a well-respected and accepted tradition. The review applicant states that as a woman, she had the responsibility to raise her brother’s children and in the community, the tribe assigns the responsibility to an individual or family unit. She promised to raise the children and took this responsibility. There was a collective decision made by the community on the basis of cultural norms and she respected that decision. Breaking the promise would have big implications for her. The review applicant states that she has been raising the children since 2009 and is the mother for them.

12. The Tribunal has considered the evidence of adoption. The Tribunal is prepared to accept that arrangements were made in accordance with the usual practice or recognised custom in the culture of the adoptee and the adopter. However, the review applicant has not satisfied the Tribunal that the formal adoption was not available under the law of the place where the arrangements were made. Neither is the Tribunal satisfied that formal adoption was not reasonably practicable in the circumstances. The Tribunal acknowledges the review applicant’s evidence that there were numerous restrictions, including financial, cultural, linguistic and with the practicalities of travel, as well as safety issues. There is little objective evidence – for example country information reports or evidence from independent sources – that supports these claims. There is little evidence to satisfy the Tribunal that the difficulties to which the review applicant refers could not have been overcome with reasonable effort. The review applicant’s evidence suggests that the family did not pursue the formal adoption primarily because they did not believe it was necessary and because it was not common to arrange the formal adoption. In the Tribunal’s view, it is that recognised custom of not pursuing the formal adoption that is the reason why the formal adoption was not arranged and not because it was unavailable or not reasonably practical.

13. The Tribunal is not satisfied that all the elements of the customary adoption were met in this case. In particular, the applicant has not satisfied the Tribunal that formal adoption was not available or was not reasonably practicable. The Tribunal accepts that the review applicant has been taking care of, and providing support to, the visa applicant but the Tribunal does not accept that their relationship was in the form of adoption.

14. The Tribunal is not satisfied on the evidence before it that the visa applicant was customarily adopted by the review applicant and the Tribunal is not satisfied the visa applicant is an adopted child of the sponsor. He is not a biological child. The visa applicant does not meet cl. 101.211 and cl. 102.211.

    Is the visa applicant an orphan relative of the sponsor?

15. The Tribunal has also considered the application against the requirements of Subclass 117. On 22 March 2019 the Tribunal received results of the DNA test confirming that the sponsor is the aunt of the visa applicant. The Tribunal accepts that the visa applicant is a relative of the sponsor.

16. The review applicant and the visa applicant claim that the visa applicant’s parents are deceased. The review applicant provided to the Tribunal the death records for the visa applicant’s parents. On 22 March 2019 the Tribunal received confirmation from the overseas post that the two death certificates for the visa applicant’s parents were counterfeit and that the individuals claimed to be deceased were still alive. The Tribunal wrote to the review applicant pursuant to s. 359A of the Act, seeking her comments or response to the above information. In her response to the Tribunal of 1 April 2019 the review applicant stated that the person who was questioned by the IOM representative was scared. The review applicant reiterated that the death certificates were genuine.

17. The review applicant also provided to the Tribunal a statement from the Oromia Regional State Meraro Shalla Peasant Association which states that there may have been a mix up due to the similarities in names and that the original sealed document dated November 2018 should be accepted. A further statement confirms that the approval certificate had been registered.

18. The Tribunal acknowledges that evidence, as well as the review applicant’s explanation that the person questioned was ‘scared’. The Tribunal finds that evidence unconvincing. Firstly, the Tribunal is of the view that those conducting inquiries at the locality of the visa applicant would be aware of the social and cultural norms and linguistic expectations and would be cognisant if the person being questioned would have any difficulties responding to the questions.

19. Secondly, the inquiries made by the overseas post suggest that the death records were not genuine. To then provide a statement from the local authorities stating that these records are genuine and should be accepted does not sufficiently address the Tribunal’s concerns. There is no reason why the evidence gathered through the Departmental inquiries should be disregarded and the Tribunal does not consider that the statements from the local authorities should be given greater weight than the evidence gathered through such inquiries. The Tribunal prefers the evidence obtained in the course of the Departmental inquiries. On the basis of such evidence, the Tribunal has formed the view that the death records are not genuine and the Tribunal does not accept that the visa applicant’s parents have passed away.  

20. In oral evidence, the applicant told the Tribunal that after being requested to provide evidence of the parents’ deaths, she applied to the local council, which produced death certificates. The IOM visited the office where the death certificate were produced at the time there was a community meeting. The applicant said that the IOM staff spoke to community members, not community leaders. The community members advised the IOM staff that Mustefa was alive and that was the advice received by the IOM and given to the Tribunal. Afterwards, they went back to the community and the community member explained that there were three people living in the local community called Mustefa and that is why there was a mistake communicated to the IOM. The community leaders confirmed that the death certificates were genuine and the initial advice related to a different person. The review applicant noted that the local council produced another letter confirming what has taken place.

21. The Tribunal does not accept the review applicant’s evidence. The IOM or the Departmental staff would have made inquiries about a particular person and a particular family, not any Mustefa living locally. The review applicant also claims that it is necessary to consider the local environment as people do not engage with the authorities and would have been scared to give advice. The Tribunal does not accept that being scared would have resulted in them providing incorrect advice.

22. Neither does the Tribunal accept the applicant’s evidence that evidence is unreliable because the person giving evidence was not a community leader but a community member, and the IOM staff did not ask for qualifications and were not speaking to the person who produced the death certificate. The Tribunal does not consider that particular qualifications are necessary to advise about one’s circumstances. There is no reason why a member of the local community, who is not a community leader, would be unaware of the circumstances of another person living in the same area. There is no reason why that person, by virtue of his positon or ‘qualifications’ should be unaware whether the visa applicants’ parents were alive or dead. The Tribunal does not accept that it was only the community leader who was capable of providing advice to the IOM.

23. The Tribunal is also mindful that there is no explanation with respect to the children’s mother. While the review applicant seeks to explain the advice in relation to the father by stating that the locals referred to the wrong person, there is no explanation why the local authorities would issue the same advice in relation to the mother.

24. The review applicant argues that the Tribunal received death certificates with respect to the parents and an explanation for the advice given to the IOM. The review applicant claims that the new documents should be accepted and can be verified. She states that they are ‘telling the truth’ and cannot provide additional evidence. The Tribunal acknowledges that it is for this Tribunal to determine the weight to be given to the documents and the verification advice. The Tribunal has formed the view, having regard to the above concerns, that the presented evidence is unreliable. The Tribunal is not satisfied that the visa applicant’s parents have died. The Tribunal is not satisfied that the visa applicant cannot be cared for by his parents because each of them is dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied the visa applicant is an orphan within the meaning of r. 1.14 and he does not meet cl. 117.211 and cl. 117.221.

25. The review applicant told the Tribunal that she has been caring for the visa applicant for a number of years and would not have done that if there was no need. The Tribunal acknowledges that submission and accepts that the review applicant has been providing support to the child for a number of years. However that is not sufficient to overcome the Tribunal’s concerns noted above or to satisfy the Tribunal that the statutory requirements for the grant of the visa are met.

    Conclusion

26. For the reasons above, the criteria for the grant of the Class AH visa are not met.

    DECISION

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

    Kira Raif
    Senior Member