Meresa (Migration)

[2019] AATA 2658

Meresa (Migration) [2019] AATA 2658 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Abeba Belay Meresa

VISA APPLICANT:  Ms Feven Gebregziabher Weldearegay

CASE NUMBER:  1611109

DIBP REFERENCE(S):  OSF2014044285

MEMBER:Kira Raif

DATE:29 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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 29 March 2019 at 3:22pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of Australian relative – niece of sponsor – death of mother – father physically and mentally incapacitated to provide care – sponsor providing emotional and financial support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cls 102.211, 117.111, 117.211, 117.221, rr 1.03, 1.14

CASES

Nguyen v MIMA (1998) 158 ALR 639
Singh v Minister for Immigration & Anor [2008] FMCA 587

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 31 May 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 December 1998. She applied for the visa on 24 June 2014. 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 visa applicant was an orphan relative of her Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 7 May 2018 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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, which is extracted in the attachment to these reasons. 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. 

7. In order to be granted a subclass 102 (Adoption) visa, the applicant must satisfy the criteria set out in Schedule 2 of the Migration Regulations 1994 (the Regulations). The issue in question in this case is cl 102.211 which is relevantly set out below:

   (1)          The applicant meets the requirements of subclause (2), (3), (4) or (5).

   (2)          An applicant meets the requirements of this subclause if:

   (a)the applicant has not turned 18; and

   (b)the applicant was adopted overseas by a person who:

   (i)was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and

   (ii)had been residing overseas for more than 12 months at the time of the application; and

   (c)the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

   (d)the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.

   Is the visa applicant an orphan relative of an Australian relative?

8. The review applicant provided to the Tribunal a copy of the primary decision. It indicates that the visa applicant claims to be a niece of the review applicant but the visa applicant provided with her application evidence that she has been adopted by the review applicant. The Tribunal is mindful that cl. 117.211 requires the visa applicant to be an orphan relative or not an orphan relative only because of the adoption.

9. The applicant claims to be a niece of the sponsor. According to the primary decision, the applicant has not presented satisfactory evidence of her relationship with the sponsor and the delegate was not satisfied the applicant was a relative of the sponsor. The review applicant provided to the Tribunal her own birth certificate and marriage certificate which identifies her parents and her sister’s death records which identifies the same parents. The Tribunal is satisfied on the basis of this evidence that there is a sibling relationship between the sponsor and the child’s mother and the Tribunal accepts the visa applicant is a niece and a relative of the sponsor. The visa applicant was born in December 1998 and the application for the visa was made in June 2014. The visa applicant was under the age of 18 at the time the application was made. There is nothing to suggest she has ever had a spouse. The Tribunal finds that the visa applicant meets r. 1.14(a).

10. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

11. With respect to her parents, the visa applicant claims her mother has died. She presented no documentary evidence relating to her mother’s death but the delegate accepted that the mother may have passed away.

12. With respect to her father, the visa applicant provided evidence that the father has been diagnosed with HIV and she claims he is incapacitated as a result and cannot care for her. The primary decision record notes that the father has been assessed by a panel doctor, who found him to be self-sufficient and, as a result, the delegate was not satisfied that the father was permanently incapacitated and could not care for the child. The visa applicant also referred to her father’s financial inability to care for the child.

13. The review applicant provided a number of documents to the Tribunal in April 2018. She provided a report about people living with HIV in Ethiopia. The Tribunal considers that report unhelpful. The very specific issue before the Tribunal is the father’s incapacity to care for the child and a generalised report about the situation in the country does not address that issue and the specific circumstances of the parties.

14. The review applicant provided a statutory declaration in which she states that she and the visa applicant have been close since childhood (a photograph was included but it is impossible for the Tribunal to determine who is depicted). The review applicant states to the stigma attached to HIV patients and the father’s withdrawal from the family affairs. The review applicant states that the father does not take care of the child, is not fit to do so and the child is shunned by others and depressed about her circumstances.

15. The representative’s submission to the Tribunal outlines the family’s circumstances. It states that the visa applicant’s father was diagnosed with HIV but he did not inform his spouse and as a result of being infected, she passed away in February 2005. Since that time the father’s health deteriorated and he is depressed and drinks heavily. He is unable to work and is supported by the local church and does not provide parental care to the child. The sponsor has been supporting the child financially and emotionally. With respect to relationship, the review applicant has provided the child’s birth certificate identifying her parents and, according to the naming convention, the grandparent. The review applicant offered to undertake DNA test to confirm the relationship. With respect to the father’s incapacity, the representative refers to the ordinary definition of the term ‘care’ stating that the exercise of control over a child with no support cannot be considered as care and it is stated that the father does not provide parental care towards the child. It is submitted that the father is not willing to care and is incapable of caring for the child and has no capacity to do that. It is also stated that the father suffers from depression and drinks heavily and has little control over his emotions. There is little mental health support available to him and it is submitted that his psychological condition affects his capacity to care for the child. As that condition is unlikely to improve, the incapacity is permanent. The representative also refers to cultural impairment, as a result of the stigma associated with HIV in Ethiopia.

16. The Tribunal found the review applicant’s oral evidence to be truthful and persuasive and accepts that evidence. The Tribunal acknowledges the review applicant’s evidence that the child’s father is depressed and it is affecting the child’s own life. She is also depressed and her father does not allow her to have any contact with the outside world. The review applicant told the Tribunal that she needs to offer healing to the child and the father is not able to do that. The Tribunal accepts that evidence. The Tribunal accepts that the sponsor is willing to take care of the child and believes the child would be better off with her. The Tribunal also accepts the review applicant’s evidence that the child wants to leave that environment and

17. The Tribunal accepts all the evidence from the review applicant but is also mindful that according to the primary decision record, the father had been assessed by a panel doctor who formed the view that the father was self-sufficient. The representative submits that the panel doctor would have only assessed the father’s HIV status but not the mental health condition. It is not apparent from the information before the Tribunal that the full assessment of the father’s condition, including his mental health, had been assessed. For that reason, the Tribunal arranged another assessment by a panel doctor. In March 2019 the Tribunal was informed that an assessment of incapacity, for the purpose of cl. 1.14, cannot be completed. The Tribunal wrote to the review applicant seeking further information about the father’s incapacity. The Tribunal has had regard to the review applicant’s written submissions to the Tribunal of 21 and 22 March 2019.

18. In her written submission to the Tribunal the review applicant refers to the reasoning in Singh v Minister for Immigration & Anor [2008] FMCA 587 that the nature of the parental role depends on the needs of the particular child. As discussed in the course of the hearing, the visa applicant in this case was about 15 years of age at the time of the application and is an adult at the time of this decision. Her needs may be different compared to a younger child. However, the review applicant argues that her needs must be considered in light of the fact that her mother died when the child was seven years old and the father ‘retreated from society’ and the review applicant submits that the child’s needs are different to those of a child who grew up in stable family and that the visa applicant’s emotional needs are greater. The review applicant also refers to the cultural context, stating that the visa applicant is an unmarried girl who is currently studying and requires significant financial support from a parental figure. The review applicant notes that the visa applicant’s father is not able to provide emotional or financial support to the visa applicant. The visa applicant provided to the Tribunal a report from a mental health social worker, Mr Ganyu, which supports these claims.

19. The Tribunal accepts the review applicant’s evidence. The Tribunal has formed the view that due to the visa applicant’s age at the time of the application and at present, her physical needs may not have been significant. However, the term ‘cared for’ is not limited to physical care. It also includes emotional, psychological, financial and other forms of care that a parent may normally provide. In this case, the Tribunal accepts that the visa applicant’s father suffers from HIV and that he has abandoned these responsibilities in relation to the visa applicant. The Tribunal accepts the review applicant’s evidence that the visa applicant has substantially relied on her for such support and not on her father and that is because of the father’s incapacity to provide such care and support due to his physical and mental condition.

20. The Tribunal is satisfied that the visa applicant’s father has a condition affecting his physical and mental health, that renders him permanently incapacitated. The Tribunal is satisfied that the visa applicant cannot be cared for by her father because he is permanently incapacitated and by her mother because she is dead. The Tribunal is satisfied the visa applicant meets r. 1.14(b).

21. There is evidence before the Tribunal that the sponsor has been providing financial and emotional support to the visa applicant for a number of years. She has a close relationship with the visa applicant who relies on her. She is willing to continue to provide such support in the future. There is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant. The Tribunal finds that the visa applicant meets r.1.14(c).

22. The Tribunal finds that the visa applicant was an orphan relative at the time the application was made and is an orphan relative at the time of this decision. She meets cl. 117.211 and cl.117.221.

    Conclusion

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

    DECISION

24. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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