Melka (Migration) - [2024] AATA 2471

Melka (Migration) [2024] AATA 2471 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Bezuayehu Gebisa Melka
VISA APPLICANT:  Mr Robel Girma Gebisa
CASE NUMBER:  1926050
HOME AFFAIRS REFERENCE(S):          2016047060
MEMBER:Brendan Darcy
DATE:14 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 14 March 2024 at 3:45pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – insufficient evidence to support claims that the whereabouts of the applicant’s mother are unknown – visa applicant was not an orphan relative of an Australian relative at the time of application – parties concede not to have lodged any official report with the authorities – Tribunal does not accept the applicant’s mother was either dead, permanently incapacitated or that her whereabouts were unknown – definition of ‘orphan relative’ was not met – there are compelling and compassionate aspects of the visa applicants’ circumstances – Ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, r 1.14, Schedule 2, cls 117.111, 117.211,117.221

CASES
EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 11 July 2016. At that time, 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.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include clause 117.211 and regulation 1.14.
The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts, as required by r 1.14.
The review applicant or the sponsor appeared before the Tribunal on 25 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, Mr Million Gebisa Melka, who claimed to be the brother of the sponsor.
The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The sponsor was born on 29 September 1973 in the Federal Democratic Republic of Ethiopia (Ethiopia). The applicant arrived in Australia on 16…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Melka (Migration)

Details

AGLC: Melka (Migration) [2024] AATA 2471
Case: [2024] AATA 2471
Decision Date: 14 March 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Class AH Subclass 117 (Orphan Relative) visa. The applicant, born in Ethiopia in 2000, arrived in Australia in 2011 and was sponsored by her aunt, who was an Australian permanent resident at the time of the visa application. The applicant claimed her father had disappeared in South Africa in June 2015 and that her mother's whereabouts were unknown since she was very young.

The primary legal issue before the Tribunal was whether the applicant met the definition of an "orphan relative" as defined by the Migration Regulations. This required determining if the whereabouts of both her parents were unknown, or if they were deceased or permanently incapacitated. The Tribunal also considered the evidence provided to support these claims, including affidavits and a letter from Ethiopian police, and whether this evidence sufficiently established the parents' unknown whereabouts.

The Tribunal found that the evidence presented was insufficient to support the claim that the applicant's mother's whereabouts were unknown. While an affidavit and a letter from Ethiopian authorities were submitted regarding the father's disappearance, the Tribunal noted a lack of official reports to the South African authorities and inconsistencies in the documentation provided. Specifically, a document claimed to be from the South African Police Service lacked crucial details, and the father's name did not appear on the South African Police website's missing persons list. Consequently, the Tribunal concluded that the applicant did not meet the definition of an orphan relative at the time of her application.

Despite affirming the decision to refuse the visa, the Tribunal acknowledged that there were compelling and compassionate aspects to the applicant's circumstances. The Tribunal indicated that these aspects would be considered in relation to potential ministerial intervention.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The sponsor was born on 29 September 1973 in the Federal Democratic Republic of Ethiopia (Ethiopia). The applicant arrived in Australia on 16 June 2011 while holding a permanent partner visa. A copy of her Ethiopian passport issued in May 2009 is on the Departmental file. On the Tribunal’s file of copy of the sponsor’s Australian passport issued 5 July 2019, indicating Australian citizenship has subsequently been conferred upon her. The visa applicant or the applicant was born on 29 February 2000 in Ethiopia’s capital city, Addis Ababa, and is a citizen of Ethiopia. A copy of the applicant’s birth certificate issued by the authorities in Addis Ababa are on departmental file. An application for a Class AH Subclass 117 (Orphan Relative) visa was lodged at Australia’s diplomatic mission in Nairobi in the Republic of Kenya on 11 July 2016. At the time of application, the sponsor was an Australian permanent resident. In that application, the sponsor claimed to be the applicant’s aunt and that the applicant’s father, Mr Girma Gebisa Melka, and the applicant’s mother, Mrs Almaz Shamebo Kalbero, had their whereabouts reported as unknown. Specifically, it was claimed that the applicant’s father had been residing in the Republic of South Africa (RSA) when he disappeared on 11 June 2015. As evidence of this disappearance, the applicant has provided an affidavit dated 12 June 2016 by Benyam Techane which gave details of the reported disappearance. A further affidavit dated 25 January 2019 by the same individual and an accompanying letter from the Ethiopian police was submitted. The letter by the Ethiopian authorities stated that no one of the applicant’s name has re-entered Ethiopian territory. With regard to the whereabouts of the applicant’s mother, it is claimed she has been missing since the applicant was very young when she abandoned the applicant, leaving the father to raise the applicant with support from one of his grandmothers. On 8 May 2018, the Department requested the applicant, through his migration agent, to provide additional information in support of the claims that his parents’ whereabouts are unknown. In particular, the applicant was asked to provide the following documents within 28 days: · Police report from the South African Police department with file reference number of the missing person’s report filed; · Statement on the circumstances of disappearance of his mother; and · Documentary evidence of efforts to trace his mother. On 3 July 2018, a document claimed to be from the South African Police service was provided dated 4 May 2018. On 12 July 2019, a delegate acting on behalf of the Minister refused to grant the applicant a Class AH visa. The department considered the letter provided against information contained on the South African Police website (SAPS) which provides details about how to report a missing person and how the process operates. It is noted a Detective is assigned to such cases and that the individual reporting the missing person should obtain the details of the investigation officer. In this case, however, the letter provided did not have details of the signatory and there was no indication whether a Detective had been assigned to the case. It can be further noted that there was no record of Germa Gibisa on the missing persons list on SAPS website.

Ratio Decidendi

Legal Principle Established

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