Mekuria (Migration)

[2019] AATA 2023

Mekuria (Migration) [2019] AATA 2023 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Almaz Mekuria

VISA APPLICANTS:  Master Derese Kinde Mesha
Miss Worke Kinde Mesha
Miss Demek Kinde Mesha
Master Mekuriyaw Kinde Mesha
Master Gizachew Kinde Mesha

CASE NUMBER:  1620566

DIBP REFERENCE(S):  OSF2015/074850

MEMBER:Kira Raif

DATE:30 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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 30 April 2019 at 2:52pm

CATCHWORDS

MIGRATION ­– Child (Residence) (Class AH) visa – Subclass 117 (Orphan Relative) visa – visa applicants’ parents are deceased – genuine identity documents – visa applicants are relatives of the sponsor – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.14, Schedule 2, cls 117.111, 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 4 November 2016 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nations of Ethiopia. They applied for the visas on 2 February 2015. The delegate refused to grant the visas because the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives 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 14 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages. The review applicant was represented in relation to the review by her registered migration agent. 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. 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.

6. ‘Orphan relative’ is defined in r.1.14 of the Regulations. 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.

   Are the visa applicants orphan relatives of an Australian relative?

7. The review applicant provided to the Tribunal copies of the primary decision records which contain the following information in relation to each of the visa applicants.

8. The visa applicants claim to be nieces and nephews of the sponsor. They stated on the application forms that their mother is Ayehu Kebede and their father is Kinde Mesha and that they are both deceased.

9. The delegate notes that the sponsor declared the visa applicant’s father Kinde Mesha Mekuria as her brother in her own visa application made in 2002. The delegate notes that the visa applicants were initially registered with different names but the sponsor subsequently provided their bio data passport pages with the names noted above. The initial names would indicate that the visa applicants’ fathers had different names and not Kinde Mesha Mekuria as stated in the application form. The delegate wrote to the applicants seeking comments on that discrepancy but no response was received within the time allowed. The delegate was not satisfied the visa applicants were relatives of the sponsor.

10. With respect to the visa applicants’ ages, the delegate acknowledged that the visa applicants presented birth certificates with the dates of birth, as well as passports and school reports. All of these have been issued shortly before the application was made. The delegate referred to the applicants’ claim that the children were staying alone in their parents’ house and that the money is managed by the eldest brother. The delegate was not satisfied that a minor would be allowed to head a household outside of a refugee camp. The delegate was not satisfied the visa applicants were under the age of 18 when the applications were made.

11. In relation to the orphan status, the applicants state that their father moved to Humara to look for a job, got malaria and died. The visa applicants provided a handwritten statement from the local church parish signed by a priest, which states that the father died on 31 August 2008 at a place called Metema. The delegate noted that the place of death appeared to be inconsistent in this record and the applicants’ own statements. With respect to their mother, the applicants claim that she died two years after her father died. There is a statement from the local church which refers to the death of Ayehu Kebede on 16 June 2010 and the funeral service. The letter is dated April 2016, shortly before the applications were made. The delegate did not accept the death certificate as evidence of the mother’s death, given the delay in the document being issued.  The delegate was not satisfied the visa applicants’ parents had died and that the visa applicants were orphans.

12. The Tribunal also acknowledges that evidence of guardianship arrangement was provided with the applications. However, the Tribunal does not consider that such evidence proves that the visa applicants’ parents are deceased.

13. The review applicant provided a written submission and supporting evidence to the Tribunal on 8 February 2019.

14. With respect to the visa applicants’ ages, the review applicant states that birth registration rates in Ethiopia are low and the visa applicants’ births were not registered with the local administration office. However, each child was baptised at the local church shortly after birth and evidence of baptisms and births was requested from the church. The review applicant notes that the visa applicants had submitted their passports and there was no suggestion that these are not genuine documents. The review applicant notes that if the visa applicants were able to satisfy the Ethiopian authorities as to their identity, the Tribunal can rely on the passports as evidence of names and dates of births. The review applicant notes that the only reason the delegate did not accept the oldest child’s age was because the children were living alone. The review applicant states that she paid a woman living nearby to care for the children. The children were living alone because their mother died and nobody else was available to step in and make decision regarding their welfare.

15. With respect to her relationship with the visa applicants, the review applicant states that she declared Kinde Mesha Mekuria as her brother and the children’s documents show him as their father.

16. With respect to the visa applicants’ status as orphans, the review applicant states that the parents did not die in hospital and there is no medical evidence of the deaths. When their mother died, there was nobody to assist them with the registration and it would be unreasonable to expect minor children to complete he registration procedures. The review applicant refers to the documents issued by the South Gondar Court confirming the children’s orphan status and these were issued upon testimony of the review applicant’s husband and three witnesses from the local area. The review applicant refers to the emotional and financial support she provided to the children.

17. The review applicant provided with her submission to the Tribunal the visa applicants’ passports, birth and baptism records, court documents and evidence from the local authority and the church attesting to the visa applicants’ orphan status. With respect to the circumstances of the deaths of the visa applicants’ parents, the review applicant said that her brother passed away in 2007 due to malaria. She travelled in early 2008 to visit his burial site and see the children but because the area where he died was a war zone, she could not visit the site of his burial. In relation to the children’s mother, the review applicant said she was sick for a long time and tried to get treatment.

18. The additional documents have been verified by the Tribunal and on 3 April 2019 the Tribunal received confirmation that the documents had been genuinely issued and the information contained in these records is correct. On the basis of these records, the Tribunal is satisfied that the visa applicants’ parents are deceased. The Tribunal finds that the visa applicants cannot be cared for by their parents because each of them is deceased. The visa applicants meet r. 1.14(b).

19. With respect to the children’s ages, the Tribunal acknowledges the various evidence of the dates of birth. There are baptism records which were issued at the time of baptisms and other records such as birth records and passports which were issued before the visa application was made. The delegate’s concern was with the fact that a minor child was identified as the head of the household but in the Tribunal’s view that is not sufficient to negate the probative value of the official records relating to the children’s births, which have been verified as genuine. Having regard to these records, the Tribunal is satisfied that each of the visa applicants was under the age of 18 at the time the applications were made. There is no evidence that the visa applicants have partners.

20. With respect to the children’s names, the review applicant explained to the Tribunal that when she arranged the passports, she wrote the names as recorded by the parents, not the names given by the priests during baptism. The review applicant stated that she would not be supporting the children for so long and would not bring them to Australia if they were not her relatives.

21. The Tribunal has considerable concerns about the paucity of objective evidence proving the relationship between the visa applicants and the sponsor. However, in this case the Tribunal is mindful that the various statements which the review applicant presented to the Tribunal confirm the relationship between the visa applicants and their deceased parents, as the children were known to various authorities. The Tribunal places weight on the fact that the child’s father has been identified as the sponsor’s sibling in her own visa application. The Tribunal also accepts that better evidence of the relationship may not be available in this case. The Tribunal notes that the various documents relating to the children’s identity have been verified as genuine through the overseas post. On balance, the Tribunal is prepared to accept that the visa applicants are relatives of the sponsor. They meet r. 1.14(a).  

22. The Tribunal accepts that the review applicant has been providing emotional and financial support to the visa applicants. She has expressed willingness to continue to provide such support. There are no compelling reasons to believe that the grant of a visa would not be in the best interests of the visa applicants. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.

23. Given the findings above, cl.117.211 is met. The Tribunal further finds that the visa applicants continue to satisfy the criterion in cl.117.211, with the exception of the first named visa applicant who does not meet the requirements only because he has turned 18. It follows that cl.117.221 is met.

    Conclusion

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

    DECISION

25. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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