KEFELEGN (Migration)

[2017] AATA 357

KEFELEGN (Migration) [2017] AATA 357 (8 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr LEMMA BALCHA KEFELEGN

VISA APPLICANT:  Ms BIRTUKAN ABALULESA ABAGIBIE

CASE NUMBER:  1615032

DIBP REFERENCE:  BCC2016/2558203

MEMBER:Rosa Gagliardi

DATE:8 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 08 March 2017 at 2:50pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – cl 600.211 – Genuine temporary entrant – Ownership of a building and coffee plantation – Family ties in Ethiopia – Possible employment in family’s Australian business – Limited evidence of family’s economic position in Ethiopia – Ongoing civil unrest

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 600.211

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 29 August 2016 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 2 August 2016. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

5. The review applicant/sponsor appeared before the Tribunal on 25 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Ms Abagibie, overseas as well as from Mr Kebele in Australia.  The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic, Amharic (Ethiopian) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

8. In the present case, the visa applicant seeks the visa for the purposes of visiting family. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   Background

9. The applicant is a 70 year old widow, born in Agaro in the Province of Oromia.  She currently lives in the Addis Ababa area.  It is claimed that she owns a multilevel building and has an interest in a coffee plantation as well as a cattle farm.  The majority of her family by way of children are living in Ethiopia.  The sponsor’s wife, the sponsor and their children are the only family belonging to the applicant in Australia.

10. The sponsor runs a family restaurant in Melbourne which prevents the family from visiting the applicant overseas.  The sponsor has undertaken to provide for the applicant’s needs in Australia.

    cl.600.211(a)

11. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

12. The sponsor gave evidence that the visa applicant has travelled to Kenya and Nairobi but had never travelled outside Africa.  It is difficult for the Tribunal, therefore, to place either positive or negative weight on this matter, except to say that the Tribunal is unable to make any favourable findings in relation to the applicant’s travel history to Australia.

13. The Tribunal accepts that given the applicant’s age and her inability to speak English that she is highly unlikely to seek out employment on the open market.  Nonetheless, the sponsor runs a family restaurant in which his wife (the daughter of the applicant), also works.  At hearing evidence was given that elderly women do not like to be isolated at home in a foreign country and therefore it is not entirely implausible that the applicant might seek to go to the restaurant to be with her son-in-law and daughter.  Work in the restaurant would not necessarily require English language skills were she to undertake work that did not involve duties front of house.  The Tribunal has some reservations about this matter, but this is no way determinative of the review.  The Tribunal simply raises it as a consideration. 

14. The Tribunal has no concerns, on the other hand, that the applicant would be likely to study in Australia for any period. 

    cl.600.211(b)

15. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·             8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

16. In terms of the applicant changing her status onshore, the Tribunal as put to the parties at hearing, has concerns.  The applicant is a widow who lost her husband approximately one year ago.  The Tribunal has heard that the sponsor’s wife lost her father but was unable to attend the funeral in Ethiopia because of the family’s commitment to the restaurant.  The family find it difficult to travel to Ethiopia as, if they all went to see their mother/grandmother, it would mean that the restaurant would have to be closed for a couple of months.  Therefore, they thought that the easiest option would be to bring the sponsor’s mother-in-law to Australia to see the family. 

17. The Tribunal appreciates that the sponsor and his family are working hard to provide for their family and that it is not practical for the whole family to travel at once.  Nonetheless, the Tribunal cannot see why the sponsor’s wife cannot travel to see her mother in Ethiopia and the business could not employ someone for a short period to take her place.  The Tribunal’s focus, however it might be sympathetic with the sponsor and his family’s situation, is on the intention of the applicant.

18. In light of the paucity of evidence regarding the applicant’s economic circumstances combined with the economic and security situation in Ethiopia, the Tribunal has reservations about whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

19. In terms of the incentives to return to Ethiopia it is claimed that the applicant has a building of several levels that she owns outright and which she shares with her other children.  She has several other children who are married and live independently.  The Tribunal is prepared to accept that the applicant owns this building as claimed. 

20. It is also claimed that the applicant is a part owner of a coffee plantation and that she also farms cattle.  The Tribunal has limited probative evidence before it that this is the case, however, and what portions she may own, if any.  Given the lack of persuasive documentation in this regard, the Tribunal therefore has to query the applicant’s source of income.  

21. The witness Mr Kebele stated at hearing that he knew that the family was wealthy but the Tribunal is not satisfied that the information provided supports this contention.

22. Along with the application, the applicant has submitted a letter from the Commercial Bank of Ethiopia, dated 15 July 2016, stating that the applicant had opened the account on

    
    

    11 October 2013 and had a credit balance of Ethiopian birr 100,116.98 cents; equivalent roughly to AUD$5,792.36.  While this is not an insignificant amount in relative terms, the Tribunal is unable to discern from this letter any pattern of savings that would show that the applicant derives an income to support herself from either her purported coffee plantation or her cattle farm.  The source of the AUD$5,792.36 is therefore unclear. 

23. In terms of the applicant’s economic circumstance in Ethiopia the Tribunal is not satisfied that it is such that it would represent an incentive for the applicant to return, particularly when she is already sharing her home with her children and her absence, as far as the Tribunal can see, would not impact negatively on them financially.

24. The Tribunal has considered that the sum of the applicant’s family is more numerous in Ethiopia than it is in Australia and that she has family friends there.  The Tribunal has placed some weight on this matter in the applicant’s favour.  When weighed against the prevailing conditions in Ethiopia, however, the Tribunal is not persuaded that an elderly widow would be motivated to return to a country with health facilities that are not comparable to those in Australia and where a combination of economic and security issues render Ethiopia a less than favourable destination within which to live in the later years of a person’s life. 

25. The Australian Government Department of Foreign Affairs and Trade smart traveller website dated 14 January 2017, advises that those considering travelling to Ethiopia needed to reconsider their need to travel overall, including Addis Ababa due to ongoing civil unrest and the threat of terrorist attack. [1]

    [1] accessed on 25 January 2017.

26. 12 November 2016 marked the first anniversary of the Oromo Protests, “a non-institutional and anti-authoritarian movement calling for an end to decades of systemic exclusion and subordination of the Oromo”; the applicant being of the Oromo people.[2]  Further:

    Although the protests were sparked by a government plan to expand the territorial and administrative limits of Ethiopia’s capital, Addis Ababa, into neighbouring Oromo towns and villages, they were manifestations of long-simmering ethnic discontents buried beneath the surface. 

    The Oromo are the single largest ethnic group in Ethiopia and East Africa…Yet, Oromos have been the object of discriminatory and disproportionate surveillance, policing, prosecution and imprisonment under the guise of security and economic development.

    The year-long protests, which brought decades of hidden suffering and abuse to the Ethiopian streets, were held under what Human Rights Watch described as a “near-total closure of political space”. 

    As the protests grew in magnitude and intensity, the government responded with overwhelming and disproportionate force, unleashing what Amnesty International called “a vicious cycle of protests and totally avoidable bloodshed”…

    Another milestone came on October 2, 2016, when security forces fired tear gas and live bullets on a crowd of over two million people gathered to celebrate Irreecha a cultural festival in which Oromos from all walks of life congregate to celebrate life and nature.[3]

    [2] ‘The Oromo protests have changed Ethiopia, The struggle of the Oromo people has finally come to the attention of the global public conscience’, Awol K All, Lecturer at Keele University, United Kingdom, 21 November 2016. 

    [3] ibid.

27. On 9 October 2016 the Ethiopian government declared a six month State of Emergency giving security forces and the army new sweeping powers “in one of the most censored countries in the world, where the security apparatus is already extensive and permeates all levels of social structures, including individual households”. [4]   The State of Emergency measures included: random arrest and searches; suspension of rights to write and circulate inflammatory messages; outlawing of unauthorised demonstrations; curfews; and blocking the internet and other communications technology.[5] 

    [4] Ibid.

    [5] accessed on 25 January 2017.

28. The smart traveller website also alerts to the ongoing threat of terrorism in Ethiopia, with reports that terrorists are planning attacks against a range of targets, including commercial and public places including clubs, hotels, schools, places of worship, landmarks, markets and market places, shopping centres and malls, and public gatherings, including large religious festivals.[6]   It is believed that a number of al-Qai’da operatives and other extremists are believed to be operating in and around Africa.  On 13 October 2013, for example, a bomb exploded in a residential neighbourhood of Addis Ababa.  The government released a November 2013 warning that al-Shabaab intended to carry out attacks in Addis Ababa and other areas of the country.[7]

    [6] Ibid. 

    [7] Ethiopia 2014 Crime and Safety Report, accessed on 25 January 2017. 

29. In addition to these concerns, the Tribunal notes that country information indicates that in the last year Ethiopia has struggled with what is described as “the worst drought for 50 years leaving 18 million people in need of aid”.  This is due mainly to the failure of two successive rainy seasons with no crops to feed the population or their cattle. [8] 

    [8] Ethiopia struggles with worst drought for 50 years leaving 18 million people in need of aid, by Aislinn Laing, Sitti Zone, Ethiopia, The Telegraph, 23 April 2016.  accessed on 25 January 2017.

30. The article cited in The Telegraph continues “To Western eyes, the scenes of hunger are disturbingly reminiscent of the country’s infamous famine of 1984, which killed one million people and sparked the Live Aid campaign…” [9]  The government is trying, however, to shrug off Ethiopia’s image as the symbol of African famine and disaster and as the early stages of the drought got progressively worse, the authorities refused to admit they could not cope alone, leading to a crucial delay in the international response.  This is because there are fears that if the government says they’ve got a massive food crisis, investors pull out and jobs are lost.  Credible statistics about deaths related to the drought are rarely issued and even humanitarian workers are careful about using words such as “famine” or “death”. [10]

    [9] Ibid.

    [10] Ibid.

31. While the Tribunal has not overlooked that the economy has developed in Ethiopia more recently, and the population grown to more than 90 million, three quarters are still dependent on agriculture for survival and it is reported that drought has killed up to 90 per cent of crops in some areas and at least one million cattle. [11]

    [11] Ibid. 

32. As previously stated, the Tribunal has concerns about claims that the applicant owns or part owns a coffee plantation and is running a cattle farm.  Even if the Tribunal accepts this to be the case, however, the current conditions in Ethiopia as far as agriculture and farming are concerned are not at all favourable.  The sponsor at hearing responded to such concerns by saying that his mother-in-law and her area are not affected, but given the proportions of drought the Tribunal is not persuaded that this is the case given the limited evidence submitted about the applicant’s economic circumstances overall. 

    cl.600.211(c)

33. The Tribunal has also considered all other relevant matters and the Tribunal notes that the applicant had initially requested a stay of six months in Australia, even though at hearing the sponsor stated that it was unlikely that the applicant would even stay a couple of months and that initially she had no intention of coming to Australia but that he and his wife had been instrumental in persuading her to do so.  Nonetheless, the original intention to visit Australia for six months appears to be an unusually lengthy visit, in circumstances where it is being claimed that the applicant has responsibilities at home which include running a coffee plantation as well as a cattle farm. 

34. The Tribunal acknowledges that the sponsor’s mother-in-law may not be a target of any  political or other actors in the country and that she may not be fleeing Ethiopia for any political or religious reasons. The Tribunal is not satisfied, however, that the limited evidence in support of this case and the country information about the current circumstances in Ethiopia, are outweighed by reassurances that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

35. For the above reasons the Tribunal finds that the requirements of cl.600.211 are not met.

    DECISION

36. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Rosa Gagliardi
    Member