Kahsay (Migration)

[2019] AATA 4631

Kahsay (Migration) [2019] AATA 4631 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Goitom Asmelash Kahsay

VISA APPLICANT:  Miss Meron Werkeluel KASSA

CASE NUMBER:  1705466

DIBP REFERENCE(S):  OSF2016/046571

MEMBER:Margie Bourke

DATE:15 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.311 of Schedule 2 to the Regulations.

Statement made on 15 July 2019 at 2:04pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – secondary applicant member of primary applicant’s family unit – reliant on primary applicant for financial support to meet basic needs for food, clothing and shelter – secondary applicant not in spousal or de facto relationship – evidence of parent’s death certificates provided – guardianship order – inconsistent evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 362A
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 1.12, Schedule 2, cls 309.21, 309.311

CASES
Al Naqi v MIAC [2007] FMCA 874

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 2 February 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 January 2016 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the secondary visa applicant did not satisfy cl.309.311 because the delegate was not satisfied that the secondary visa applicant was a member of the family unit of the primary visa applicant.

4. The review applicant appeared before the Tribunal on 13 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant who attended the hearing, two friends of the review applicant who attended the hearing, and the visa applicant who gave evidence via telephone.  The tribunal hearing was conducted was assistance with an interpreter in the Tigrinya and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the secondary visa applicant meets the requirements of cl.309.311.

   Secondary Visa Applicant

7. Cl.309.311 requires that at the time of application the secondary visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. Based on the application and sponsorship forms the secondary visa applicant made a combined application with the primary visa applicant.  Based on the evidence that the primary visa applicant attended the hearing and is the holder of a current 309 visa, I am satisfied that met the criteria for a subclass 309 visa, including the primary criteria in Subdivision 309.21.

8. The issue to be determined in this review is whether the secondary visa applicant, Meron, is a member of the primary visa applicant, Zayd’s family unit at the time of application. The application for the visa was made on 5 January 2016.

9. The visa applicant’s claim they are biological sisters. To meet the requirements of r.1.12(1), as siblings, Meron would be required to meet r.1.12(1)(e) and be a relative of the [family head or of a spouse or de facto partner of the family head] Zayd, (i) does not have a spouse or de facto partner; (ii) is usually resident in [the family head’s] Zayd’s household; and (iii) is dependent on [the family head] Zayd.

10. Prior to the hearing the review applicant provided to the tribunal birth certificates in relation to Meron and Zayd which recorded their parents.  In answer to an inquiry from the tribunal prior to the hearing the review applicant advised the visa applicants were willing to participate in DNA testing to establish their relationship. As DNA testing between siblings in the absence of their parents is not 100% conclusive the tribunal did not pursue this process.  However, I am satisfied the visa applicants are siblings, and close relatives within the meaning of r.1.03 based on the information available to me.

11. The review applicant provided the Department and the tribunal with ‘evidence of death certificates’ of both parents of the visa applicants. The review applicant gave evidence that a death certificate is the same document as evidence of a death certificate. The review applicant claims the visa applicants’ mother died in hospital in 2005 of asthma related illness, and their father died at home of illness in 2007. The review applicant provided a detailed report from the Black Lion Hospital, Addis Ababa in relation to the mother’s illness and death. This report referred to the visa applicant’s mother as 35 year old known asthmatic, amongst technical terms, referred to her cardiac problems, sepsis and TB, but did not directly refer to ongoing asthma. Zayd stated in her evidence that her mother had ongoing medical conditions but her last illness was asthma. Zayd stated she did not know why the report did not refer to asthma. The review applicant stated his knowledge of the woman’s death was provided by the visa applicants. The report records the woman was treated for TB (lung) and was an inpatient for a month, and did not respond to treatment.  I accept the written and oral evidence that the visa applicant’s mother died of a lung related illness after admitted to hospital and treated unsuccessfully in hospital in the Ethiopian calendar year of 1997, which is the equivalent of the Gregorian calendar year of 2005.

12. The two witnesses gave evidence of meeting with Meron last year and that she lived by herself.  They gave evidence of being told by the review applicant and by Zayd that her parents had died although they had no direct knowledge of this. The consistent oral evidence before the tribunal, supported by the documentary evidence including death certificates and medical reports, is that the visa applicants’ parents died when Zayd was a teenager and Meron was a young girl. I am satisfied based on the evidence before me that the parents of the visa applicants died as per the evidence before me.

13. I have considered the evidence before me from the two visa applicants that Zayd assumed a parental role for her younger sister. I accept that after her mother’s death, Meron remained in the equivalent of kindergarten or prep, being a place young children are cared for in an educational and nurturing  group environment, for another two years.  I accept that this was a private, fee taking placement.  Zayd stated she took Meron out of the private placement and put her in a government school after their father died in 2007.  Meron stated she remembered it was around the time their father died that she moved to school.

14. The parties claim that Zayd has cared for and financially supported Meron since their parents passed away.  The review applicant and visa applicants claim that Meron was a member of Zayd’s family unit at the time of application – she was a member of her household, was financially dependent upon her, and was not in a spousal or de facto relationship. The evidence is that there were no other family members, relatives, neighbours or friends who cared for Meron or both visa applicants, or who financially supported Meron or both visa applicants. The evidence before me is the oral evidence of the two visa applicants and the review applicants and two witnesses. 

15. There is some documentary evidence including a guardianship order made in the months before the visa application, giving Zayd guardianship of Meron.  The guardianship order is dated July 2015, which is ten years after the visa applicants’ mother died, and eight years after the visa applicants’ father died.  Zayd’s date of birth is given as a date in June 1990, meaning she had reached adulthood in 2008, seven years before the guardianship order is made.  The guardianship order does appear to have been sought to support the application for the visa, but this does not necessarily mean the content of the order is not reliable or correct.  The order is some evidence that Meron resides with her sister Zayd, and is cared for by her and financially supported by her.

16. In assessing the evidence before me as to whether I am satisfied that Meron is a member of Zayd’s family unit, I accept that at the time of application, based on the consistent evidence at the hearing, that Meron is not in a spousal or de facto relationship at the time of application, and meets the requirements of r.1.12(1)(e)(i).

17. In assessing the evidence as to whether Meron was usually resident in Zayd’s household, and was financially dependent upon her within the meaning of r.1.05A, the evidence before me was not always consistent, and findings were not so easily drawn.

18. The review applicant and Zayd claim that Meron has always resided with Zayd in a rented house in a compound in Metele, the capital of the Tigray regional province. The evidence of the review applicant and Zayd in submissions to the tribunal was that Meron had only completed up to grade 4 of school, which she completed at the Alene primary school in 2011 aged 12 years, based on the school records and academic achievement reports provided to the tribunal by the review applicant. In the pre hearing submissions, the review applicant stated “Mrs Zayd could not afford to send Meron to school. That was the reason that Miss Meron stopped school at fourth grade…”

19. In the hearing I discussed with the review applicant that country information indicated that government primary schools and secondary schools in Ethiopia were free. We discussed the school cycles, commencing in primary school from grade 1 to 4, than primary school 5 to 6 and then 7 to 8, before proceeding on to secondary school. The review applicant stated that he had been a teacher in Ethiopia, in secondary school. The review applicant stated that the student had to pay for uniform, books and transport, and Meron had a registration fee of $300.  I suggested to him there was no indication in the country information that I had read, but I conceded I had not been to Ethiopia or taught there, that the schools had registration fees. The review applicant stated that the reason Meron stopped going to school was not the cost of the schooling, but because Zayd had to work.

20. I asked the review applicant why taking Meron out of school affected whether Zayd could work or not. The review applicant stated things were very difficult for Zayd, and she had to sell things to pay the rent and other household bills. He stated Zayd did not have time to take Meron to and from school.

21. I am troubled by the review applicant’s evidence.  I am concerned the review applicant provided a written submission, and oral evidence (and specific oral evidence of the registration cost) that Meron ceased school after grade four in 2011 because Zayd could not afford the school costs, and then give evidence that the reasons were that Zayd did not have the time to take her to school or pick her up.  

22. When Zayd gave evidence she stated she had initially worked as a cleaner of houses, and then worked as a hair dresser.  She was employed on call, and went to people’s homes.  She stated that she could not continue to take Meron to and from school.  Zayd stated there was no relative, neighbour, other parent of school children or neighbour who could help her. So she stated her sister left school after grade 4, and sometimes came to work with her.

23. I consider 12 months a substantial period for the purposes of r.1.05A but the evidence of the visa applicants was relevant for a period of five years or more.  I will consider the evidence of the twelve month period from January 2015 to January 2016, being the twelve month period immediately before the time of application, in relation to whether Meron meets the requirements of r.1.05A. Zayd and Meron gave evidence that at the time of application and for a substantial period before that time, Zayd had worked, and earned money to pay for their rent, food, clothes, and all other bills and basic needs. Zayd and Meron gave evidence that they did not receive any financial assistance from any family member or relative.  They stated they did not have any other source of financial support. I accept Zayd received financial support from the review applicant after their relationship began, but I consider that this is to be considered as coming within the broad practical approach espoused in the judgement of Al Naqi v MIAC [2007] FMCA 874 as the review applicant became her spouse.  Zayd also stated that Meron sometimes received work experience money when she was with her, but it was an insignificant amount, and they put it towards household expenses.

24. The evidence before me is the Zayd and Meron have resided in the same house in the same compound since the death of their parents. The evidence is that Zayd has worked and assumed responsibility for all the bills. The evidence is that Zayd has continued to financially support her sister since her partner visa was granted, and has sent money to her.

25. The evidence before me is that Meron continues to reside in the house in the compound, and has been visited by the two witnesses (on separate occasions) who took her money and gifts from the review applicant and Zayd.  This is evidence of Meron’s circumstances since the time of application, but confirming that Meron continues to rely upon Zayd for her financial support. The witnesses stated they had no direct knowledge of Meron’s circumstances, but she appeared to be alone, and they accepted what they had been told by their friends, the review applicant and his wife.  I give their evidence some weight in relation to the reliability of the evidence of Merons’ circumstances of continuing to be dependent on her sister, and having no other means of family or financial support.

26. However, there were three significant pieces of inconsistent evidence in the hearing that I consider adverse, and raised doubts as to the reliability and credibility of the review applicant and visa applicants evidence that Meron usually resided with Zayd, and was dependent upon Zayd within the meaning of r.1.05A at the time of application.

27. I put these three pieces of information to the review applicant pursuant to s.359AA in the hearing.  The review applicant stated he understood the particulars of the information, their relevance to the review and the consequences if the tribunal relied upon the information.  I invited the review applicant to have a short break to consider his options, after which  he requested time to respond in writing.  The review applicant had not used the interpreter for all his evidence (unlike the two visa applicants) but had only referred to the interpreter for specific matters of interpretation. However, I clarified through the interpreter, and ensured the review applicant had written down and understood before the hearing ended, all three pieces of information.  The tribunal granted the review applicant three weeks to provide his comments or responses to the information put to him pursuant to s.359AA.

28. The three pieces of information put to the review applicant pursuant to s.359AA are as follows

29. (i) School:- the review applicant had provided to the tribunal school records that confirmed the visa applicant Meron attended primary school grade 1 to 4, and finished grade 4 in 2011 aged 12.  The review applicant and Zayd both gave evidence to the tribunal that Meron left school at the end of grade 4 because Zayd could no longer take her to school and pick her up.  The oral evidence was not a cost issue as previously claimed, but due to Zayd’s work commitments. Meron stated she went to school until she was 17 years old. At the commencement of her evidence in the hearing Meron stated she is now 19 years old.  Meron stated she completed grade seven, and did some grade eight subjects.

30. (ii) Income:- Zayd was clear in her evidence that Meron sometimes received payment from her employers; it was an insignificant amount, to recognise a work experience payment.  Meron used the payment to contribute towards household expenses. In her evidence Meron stated she never received any payment at all.

31. (iii) Living Arrangements:- The review applicant stated that Zayd left Meron (when she came to Australia in 2017) with her neighbour, Lemlem Behre.  The review applicant stated that Meron was living with this person.  Zayd stated that Meron does not live with anyone.  Zayd stated she communicates with Lemlem Behre, who is the sister of her landlord, and she checks on Meron for Zayd. Meron stated she now lives in the same house as Lemlem Behre, and has her own room there.

32. The review applicant was granted three weeks to respond to the information put to him at the hearing, which were due on 3 June 2019 but he appointed a representative after the hearing and requested a second extension of time in which to respond. Initially the review applicant requested an extension of time to an unspecified date until after the representative had prepared FOI applications for the department and tribunal files, receive the files taken further instructions and prepared and submitted further supporting evidence. The tribunal advised it did not consider it was reasonable to request an unspecified and anticipated lengthy period for an extension of time to provide the review applicant’s responses or comments to the information put to him pursuant to s.359AA in the hearing for this reason the extension of time application was refused at the tribunal did not consider it appropriate or reasonable in the circumstances.

33. Subsequently on 3 June 2019 the review applicant applied for an extension of time to respond to the adverse information put to the review applicant in the hearing of a further 14 days, and this application was granted by the tribunal, making the comments or responses due on 17 June 2019. The tribunal also provided the review applicant and his new representative with disclosure of the tribunal and department files pursuant to his s.362A request and also provided a copy of the audio recording of the hearing on 6 June 2019. In correspondence to the tribunal the review applicant’s representative advised that they had listened to the audio of the hearing in their office on 10 June 2019, and that the review applicant and Zayd had attended at their office and provided instructions on 12 June 2019 and 17 June 2019. 

34. The review applicant wrote to the tribunal on 17 June 2019 seeking a further extension of nine days to 26 June 2019, in which time they would receive a transcript of the hearing on 20 June 2019, and finalise Zayd’s statutory declaration. The review applicant, through his representative advised they had applied through FOI for the documents from the Department and were seeking other further evidence to support the oral evidence at the hearing. Initially the tribunal declined to grant the further extension of time, but subsequently advised the review applicant that the further extension of time until 26 June 2019 was granted.

35. The review applicant wrote to the tribunal on 18 June 2019 stating that they understood that the member’s appointment to the tribunal was due to end on 30 June 2019 and that the member wish to finalise this matter prior to that date. I was not constrained by such time limitations, and considered all applications for extension as to whether they were reasonable and fair in the circumstances.

1. The review applicant had stated in the letter from his representative dated 18 June 2019 that the visa applicant, Meron, had obtained photographs of the compound in which she lived, the school issued documents confirming she had returned to school age 17, and a letter from her sister’s employer in relation to payment. In this letter the review applicant’s representative stated that these three documents were unable to be forwarded due to issues with the Internet across Ethiopia.

2. On 26 June 2019 the review applicant provided the signed statutory declaration from Zayd, photos of the compound in which her sister lived and a certificate confirming that Meron had completed a short-term hairdressing course in early 2018. The other named documents in the letter of 18 June 2019 were not provided. The tribunal waited another two weeks before finalising this decision to allow the review applicant time to provide the information.

3. I have considered the responses in the statutory declaration of Zayd Kassa dated 24 June 2019 about the different evidence in relation to the visa applicant’s education. At the time of application,  Zayd’s oral and written evidence is that she could not take the child to school or pick her up after school, and that Meron finished school after grade 4 in 2011 when she had just turned 12 years.  Meron stated in her oral evidence that she continued her schooling until she was aged 17, in 2017 and completed grade 7 and did some subjects in grade 8. This is not the same evidence as the claim in Zayd’s statutory declaration that Meron returned to night school in an elementary school to study English in 2016 when she was 17 years old.  I have considered the short-term hairdressing course certificate, and I accept that Meron may have completed a short-term hairdressing course in 2018. I have to consider whether the difference in evidence about whether Meron was attending school in 2015, the twelve month period prior to the time of application, indicates that Meron was not part of her older sister’s household. I find the evidence before me about whether Meron continued her education up to grade 8 and up to the year 2017 when she was 17 years of age, or finished school in 2011 after she turned 12 is inconsistent. I have considered this inconsistency as to whether Meron was attending school or not between 2012 and 2016 may suggest the sisters were not members of the same household, as I would expect members of the same household to know if one of them was attending school over a long period of time.  I have considered this inconsistency on this point in relation to whether the evidence before me is reliable that the visa applicant did reside with her older sister in the 12 month period prior to the time of application.

4. I have considered the evidence in relation to whether Meron sometimes received the nominal payment from Zayd’s employers. I accept that Meron stated in her evidence that she sometimes accompanied her older sister to her work when she went to the salon or to people’s houses.  I have considered that Zayd gave evidence that sometimes her employer gave her some nominal money to Meron for the work she did in the shop, and that she put that money towards housekeeping. I accept that Meron stated she never received any payment, and if the payment was made directly to her older sister that is consistent with her evidence and recollection.

5. I have considered the evidence in relation to whether Meron resides with anyone since her sister left. I have considered the photographs of the compound, and the detailed evidence in Zayd’s statutory declaration in relation to the room now occupied by Meron on her own, and the room next to it occupied by the landlord’s sister Lemlem Behre. I accept that this explanation is consistent with the evidence of all the witnesses, that Meron lives in the same house as Lemlem, that Meron does not live with anyone and that Lemlem checks on Meron for Zayd.

6. Overall I have considered all the evidence in relation to the 12 month period before the time of application. I have considered that there has been one point of inconsistent evidence, in relation to whether the visa applicant, Meron, was attending school or had finished school and accompanied her older sister to work each day. I have assessed the evidence and I am satisfied that Meron accompanied her older sister to work on some occasions. I have carefully considered the evidence, and I accept that Meron had difficulties with her schooling, and the evidence of her older sister Zayd is the correct evidence in relation to her education. On balance I have considered that there was one piece of inconsistent evidence in relation to whether Meron continued schooling after Grade 4, but I find that the evidence before me is generally reliable and credible.  I accept that Meron was a member of her older sister’s household before Zayd migrated to Australia.  I am satisfied based on my assessment of the evidence that Meron completed grade 4 schooling, and did not continue schooling through to Grades 7 and part of Grade 8.  Based on my assessment of the evidence, I accept the evidence of both Zayd and Meron, that Meron was resident in her older sister’s household, and was dependent upon her for financial support at the time of application.

7. I am satisfied that Meron was a member of her sister’s household during the 12 month period prior to the time of application. I am satisfied that the only source of financial support for the visa applicant’s basic needs of food clothing and accommodation were provided by her older sister Zayd. I accept that on occasions the visa applicant may have been given a nominal sum by her older sister’s employer, which was retained by her older sister and put towards their housekeeping expenses.

8. Based on the evidence before me I am satisfied that Meron is at the time of application, and for the 12 month period immediately before the time of application was, wholly and substantially reliant on her older sister Zayd for financial support to meet her basic needs for food, clothing and shelter. Further I am satisfied that Meron’s reliance on her older sister Zayd is greater than any other reliance by her on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter. Therefore I am satisfied that Mayor and is financially dependent upon her older sister within the meaning of r.1.05A.

9. I am satisfied based on the evidence before me that the visa applicant Meron does not have a spouse or de facto partner, and has never been married, widowed divorced or separated, and therefore meets the requirements of r.1.12(1)(e)(i).

10. I am satisfied after considering all the evidence before me that the visa applicant Meron was usually resident in the family head Zayd’s household at the time of application, and therefore meets the requirements of r.1.12(1)(e)(ii).

11. I am satisfied based on all the evidence before me that the visa applicant Meron, was dependent on the family head Zayd within the meaning of r.1.05A at the time of application.

12. For all the above reasons I am satisfied that the visa applicant Meron is a member of the family unit of her older sister Zayd within the meaning of r.1.12(1)(e) at the time of application.

13. For all the above reasons I find the visa applicant Meron is a member of the family unit of, and made a combined application with Zayd, who is a person who satisfies the primary criteria in Subdivision 309.21. For these reasons the visa applicant meets the requirements of cl.309.311.

14. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

15. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.311 of Schedule 2 to the Regulations.

    Margie Bourke
    Member