Mesfin (Migration)

[2021] AATA 3792

Mesfin (Migration) [2021] AATA 3792 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sara Nesibu Mesfin

VISA APPLICANTS:  Mr Yousef Nesibu Mesfin
Mr Bruck Nesibu Mesfin

CASE NUMBER:  2018598

HOME AFFAIRS REFERENCE(S):          OSF2016/046949

MEMBER:Margie Bourke

DATE:9 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.211 and cl.101.221(2)(a)(i) of Schedule 2 to the Regulations; and

The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211, cl.101.213 and cl.101.221(2)(a)(ii).

Statement made on 09 September 2021 at 2:11pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Federal Circuit Court remittal – dependent children of the sponsor – evidence of financial support – applicant over 18 years – full-time studies – hostilities in the Tigray region – regular money transfers – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.213, 101.221; rr 1.03-1.05

CASES

Huynh v MIMA [2006] FCAFC 122

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 and Border Protection on 31 January 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 31 May 2016. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include time of application criteria in cl 101.211.

4. The delegate refused to grant the visas on the basis that cl 101.211(c) was not met because the delegate was not satisfied that the two visa applicants were the adopted children of the sponsor as claimed.

5. The review applicant, who is the sponsor in these matters, applied to the Tribunal, differently constituted, for a review of a decision of the Department. The decisions of the Department in relation to both visa applicants was identical and the decisions were dated 31 January 2017. The Tribunal in a decision dated 11 November 2019 found that the two visa applicants were adopted in a formal adoption arrangement that met the requirements of r.1.04, and also met the requirements of cl.101.211(c). The Tribunal however found that the two visa applicants were not the dependent children of the sponsor and therefore did not meet the requirements of cl.101.211(a). The review applicant appealed this decision to the Federal Circuit Court of Australia. By consent order in the Federal Circuit Court dated 18 December 2020 the matter was remitted back to the Tribunal on the basis that the Tribunal’s decision dated 11 November 2019 was affected by jurisdictional error because it had failed to consider and take into account some documents provided by the review applicant. These documents included evidence of financial support by the review applicant to the visa applicants and evidence of the visa applicants’ study at the relevant time. This is the reason that the matter is now before the Tribunal for review.

6. The Tribunal considered that the two visa applicants were living overseas and would have to give evidence by either telephone or video. The Tribunal considered the circumstances of the review applicant and the nature of the review. The Tribunal considered the lockdown restrictions in Victoria and the restrictions on in-person hearings. The Tribunal considered its objective is to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal considered that this review did not involve a large quantity of documents to be put to the review applicant by the Tribunal in the hearing. The Tribunal was of the view that if the review was conducted by way of video hearing, the review applicant and visa applicants would have a fair and reasonable opportunity to give evidence and present arguments, the Tribunal would be able to conduct the hearing fairly and effectively and would be able to properly assess the credibility of the review applicant and visa applicants. The Tribunal considered the medical reports provided by the review applicant in relation to her personal circumstances. For all these reasons the Tribunal decided that further delay in this matter was not warranted, and the matter should be conducted by way of video hearing.

7. The review applicant appeared before the Tribunal on 23 August 2021 by video to give evidence and present arguments. The Tribunal also received oral evidence from the two visa applicants who attended together by video from Addis Ababa in Ethiopia, received oral evidence from a friend of the review applicant who attended by telephone, Mekdes Wondimu, and received oral evidence from a witness Tedla Wanaw, who attended by video and who had previously been the representative for the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Dependent child criteria

9. The criterion in cl 101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

   Dependent child

10. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

11. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

12. I am satisfied based on the information provided to the Tribunal that the two visa applicants are the biological younger brothers of the review applicant. I am satisfied based on the information provided to the Tribunal that the first named visa applicant, Yousef, was born in January 1998, and the second named visa applicant Bruck was born in September 1995. I am satisfied that the application for the subclass 101 visa was made on 31 May 2016, and at the time of application Yousef was aged 18 and Bruck was aged 20 years. I therefore find that at the time of application both visa applicants were aged over 18 years.

13. I am satisfied based on the evidence before me that neither visa applicant at the time of application was a dependent child within the meaning of sub paragraph (b)(ii) of the definition of dependent child. I am satisfied that there is no evidence before me that either child was incapacitated for work due to the total or partial loss of bodily or mental functions.

14. I am satisfied based on the evidence before me that neither Yousef or Bruck is or has been married, in a de facto relationship or engaged to be married. I am satisfied based on the evidence before me that neither Yousef or Bruck has ever been employed or undertaken full-time employment.

15. I am satisfied based on the evidence before me that the Federal First Instance Court of Ethiopia gave judgement after considering the contract of adoption and the opinion from the Women and Children Affairs office in relation to the adoption request on 20 August 2012, confirming the adoption of the two visa applicants by their sister, the review applicant.  I am satisfied that based on the order of the federal First Instance Court of Ethiopia, the two visa applicants are the adopted children of their sister, the review applicant within the meaning of r.1.04.  I am also satisfied that within weeks of the adoption order being made the review applicant migrated to Australia to reside with her husband and left the visa applicants in Dire Dawa in Ethiopia. I am satisfied that at the time the review applicant departed Ethiopia the two visa applicants that she had just adopted were aged 14 and 16 years of age.

16. I am satisfied based on the evidence before me that both Yousef and Bruck were full-time students both at the time of application and at the time of this decision. I am satisfied that Bruck completed his secondary schooling Grade 12 at Notre Dame secondary school in Dire Dawa in Ethiopia, in 2016, based on the graduation certificate from the Notre Dame school. I am satisfied based on the registration papers from Mekele University Bruck enrolled and was admitted to commence a manufacturing engineering degree at the Mekele University in Tigray in the academic year 2016-2017.  For this reason I am satisfied that Bruck commenced his tertiary education and started the university degree the next academic year after completing his secondary school. I accept this is after the New Year which occurs in September in Ethiopia. I have considered the documentation provided, including the student card from Mekele University, receipts and letters from the Mekele University in relation to Bruck’s registration as a student in the manufacturing engineering course.  I am satisfied he has completed three years of this course, and was studying full-time, subject to some interruptions caused by war and the covid-19 pandemic. I also accept based on the oral evidence at the hearing, and the prehearing submissions of the review applicant, that Bruck has recently been held hostage in the University having been caught up in the hostilities in the Tigray region and was escorted to safety by the Red Cross in recent days and taken to Addis Ababa. I accept that the University advised Bruck and his fellow students that they could complete their degree at another university in Ethiopia and he is therefore still a full-time student and studying the fourth-year of his degree.

17. Due to the hostilities in the Tigray region, and the fact Bruck was held hostage and then escaped from the University I accept that he could not provide current documentation confirming his study.  The review applicant provided evidence that Bruck had registered to study his fourth year of the manufacturing engineering degree at Mekele University, boarding pass to fly from Addis Ababa to Mekele on 10 May 2021, hi student laptop outlet id for 2020-2021, Bruck’s student identification card for Mekele University, and a medical certificate issued for Bruck dated 4 June 2021 from Ayder Referral hospital.  In the circumstances I accept this evidence as confirming that Bruck was studying full time until the war infiltrated the University in August and studies were unable to continue and he fled to Addis Ababa with the assistance of the Red Cross. I note the review applicant was unable to provide any confirmation from Red Cross as to the rescue of the students from Mekele University. News items confirm the volatile situation in north Ethiopia in the Tigray region, and I accept the evidence of the second named visa applicant that he recently was held hostage and was assisted to flee the University with other students, to the safety of Addis Ababa.

18. I am therefore satisfied that the second named visa applicant Bruck, had since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. Therefore, the second named visa applicant Bruck, also meets the requirements of cl.101.213(1).

19. I am satisfied based on the evidence before me that Yousef had a more chaotic course through his secondary schooling, and failed some grades and changed schools, before completing year 10 at High School in Dire Dawa in Ethiopian in September 2018 aged 20 years. I accept he then transferred to Rift Valley College in Dire Dawa to commence an accounting diploma. I have considered his student identification and the letter from the Rift valley University Dire Dawa campus. I accept Yousef has completed two years of this three-year course which has been interrupted by the covid-19 pandemic, and is currently registered as a third-year student.

20. I am satisfied based on the written and oral evidence before me that the two visa applicants are registered as residing at a rental home in Dire Dawa. I have considered the Dire Dawa administration document which confirms the residence of the two visa applicants and one other person (Biruk Tariku) at the house number 0003-112 and is stamped by the Dire Dawa Administration Kebele 02 manager’s Office and has the emblem of the FDRE. I accept at the time of application both Yousef and Bruck lived at this address with one live in servant to assist them. I accept that after Bruck commenced his studies at Mekele University he only lived at the home in Dire Dawa during semester holidays.

21. I am satisfied based on the evidence of money transfers that the review applicant has provided monthly financial support to the visa applicants. The two lists provide evidence of regular transfers of money from the review applicant to the two visa applicants from 2017 to the present time.  I accept the evidence that this money was transferred into their bank accounts. I accept the evidence that this money was used by the two visa applicants to pay the rent, food, clothing and shoes, transport, books and university expenses. I accept that the older visa applicant, Bruck, had the responsibility to pay the rent until he went to Mekele University in 2016 at which time Yousef assumed the responsibility to pay the rent. I accept that the source of this money to pay for the basic needs of the rent, food, clothing, shoes and other needs was provided by the review applicant.

22. I have considered the evidence of the review applicant who states she also provides financial support to her parents who live in a village which is an hours walk from Dire Dawa.

23. I accept the evidence of the two visa applicants that their parents do not provide them with any financial support, although their mother sometimes gives them traditional bread. I accept that Yousef visits his parents every weekend, and Bruck visits his parents on university holidays.

24. The evidence before me from the review applicant and the two visa applicants is that Yousef and Bruck do not receive financial support to meet their basic needs of accommodation, food and clothing from any other person or any other source of support, and have never had financial support at the time of application, or before that time, or since that time, from any other person or any other source of support.

25. I asked the review applicant about the whereabouts of her other brother, Michael. The review applicant stated that he had left Ethiopia 10 years ago and she did not know his whereabouts. I asked the review applicant why her money transfers indicated that she had sent money to his bank account in Ethiopia. The review applicant stated she sent money to Michael’s account because at that time Yousef and Bruck were too young to have bank accounts, and the bank knew the two boys and would let them have the money. I discussed with the review applicant that in the money transfer list she had provided from 2017 to 2019, there were 16 payments to Bruck, 7 payments to Yousef, and in August 2018 one payment to Michael’s bank account. I discussed that payments were made to both the visa applicants before and after the payment into Michael’s bank account. I discussed with the review applicant that at that time she made a payment to her other brother Michael both the visa applicants had bank accounts and her previous answer was not correct that the boys were too young to have an account and that it could not be correct she sent money into Michael’s bank account because the younger brothers did not have bank accounts. I asked the review applicant whether Michael was actually living with the visa applicants in the house she rented in Dire Dawa?

26. The review applicant stated that her brother Michael was not living in the house. She stated the visa applicants collected the money from Michael’s bank account.  I indicated that I did not accept her answer. She stated that in her culture it was the elder person in the family who has the responsibility of looking after the younger siblings. After some discussion she stated that it would be fair to say it is usually the elder male in the family, and not necessarily the eldest child, who has the responsibility of financially supporting the siblings.  The review applicant stated that it is only if the elder male has means to provide that financial support that the elder male assumes the responsibility, and in her case she is financially stable and has provided the financial support to her family.

27. After the review applicant concluded her evidence I indicated that we would now invite the visa applicants to rejoin the meeting. The review applicant requested a short break which was granted. When the second named visa applicant, Bruck, gave his evidence he stated that he had not seen Michael for 10 years, and that he was able to withdraw money from Michael’s bank account. He stated there was a political situation that when money was regularly deposited into one account the authorities got suspicious. Bruck stated that his sister perhaps sent money to Michael’s account to avoid the authorities being suspicious of the regular payments. He stated he and his brother could withdraw the money from Michael’s bank account because they were known to be his brothers. In answer to a question he stated his sister sent money to Michael’s account one or two times and sent money to his account regularly every month.

28. I find the evidence of the review applicant and the visa applicant, Bruck, to be doubtful in relation to why the money was transferred to by the review applicant to her other brother, Michael. I do not accept the review applicant’s explanation that she transferred money into Michael’s account because the two visa applicants had not opened a bank account yet as this was clearly not the case. Given the documentary evidence the review applicant had provided, both visa applicants had bank accounts at that time in August 2018 and she had been transferring money into their accounts at that time. I do not accept the second named visa applicant, Bruck’s explanation that money was transferred on the occasion in 2018 into Michael’s bank account to avoid a regular pattern of payment into his account as the regular pattern of payment into his account had continued for some years, before and after the payment. I have some concern that the review applicant contacted Bruck during the break so that he could make some form of explanation was made for the payments into Michael’s bank account.

1. However although I have some issues about the credibility of the evidence about a payment to Michael I do not know that this detracts from my findings about whether the two visa applicants meet the criteria for the visa.

2. I consider that Michael may reside in Dire Dawa with the two visa applicants. I consider that Michael may also provide some form of financial support to the two visa applicants. I am satisfied however that the main form of financial support for the two visa applicants based on the evidence before me is from the review applicant.

3. I have also considered the evidence of the two witnesses. I accept the evidence of Mekdes Wondinu who stated she had been a friend of the review applicant from Ethiopia and arrived in Australia after the review applicant. I accept that she was aware the review applicant had been sending money to the visa applicants and that her knowledge came from what the review applicant had told her. I accept that she was aware the review applicant had been supporting the two visa applicants from their childhood. I accept her evidence that she had been with the review applicant when she selected clothes and other items to send to the visa applicants.

4. I have considered the evidence of Tedla Wanaw, which was in the form of a character reference. I have considered his evidence that the review applicant worked in Dire Dawa to support her family members prior to migrating to Australia and that she has been taking care of and financially providing for her brothers and other family members since arriving in Australia.

5. In making my findings as to whether the visa applicants are financially dependent upon the review applicant within the meaning of r.1.05A, I consider a substantial period of time to be a period of 12 months.

6. After considering all the evidence, I am satisfied that at the time of application and at the time of decision the two visa applicants, Yousef and Bruck, were, and had been for a substantial period immediately before that time, wholly or substantially reliant on the review applicant for financial support to meet their basic needs for food, clothing and shelter. Further I am satisfied that the two visa applicants’ reliance on the review applicant is greater than their reliance on any other person, or source of support, for financial support to meet their basic needs for food, clothing and shelter.

7. I am therefore satisfied that both visa applicants are aged over 18 and are dependent children of the review applicant within the meaning of r.1.05A and the meaning of r.1.03.

8. Accordingly, I am satisfied that the two visa applicants meet the requirements of cl 101.211(1)(a) at the time of application, and continue to meet the requirements at the time of decision.

   Applicant under 25 or incapacitated for work

9. At the time of application, the visa applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl 101.211(1)(b), (2).

10. At the time of application, both visa applicants were aged under 25, being aged 18 and 20 years of age. There is no evidence before me that either of the applicants were incapacitated for work due to the total or partial loss of bodily or mental functions, and therefore cl.101.211(b)(2) does not apply.

11. Accordingly, I am satisfied that the two visa applicants meet the requirements of cl 101.211(1)(b) at the time of application. At the time of decision the first named visa applicant Yousef is aged 23 and, and continues to meet the requirements at the time of decision.

12. At the time of decision the second named visa applicant Bruck is aged 25 and does not continue to meet the requirement to be aged under 25 years. I am satisfied that the second named visa applicant meets the alternative requirements for visa applicants over the age of 25 at the time of decision.

    Child-parent relationship

13. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).

14. Based on the adoption order dated 20 August 2012 I am satisfied that both visa applicants were adopted overseas by the review applicant who at the time of adoption was not an Australian citizen, an Australian permanent Visa holder, or an eligible New Zealand citizen. I am satisfied the two visa applicants were adopted overseas by the review applicant who later became a permanent visa holder and in 2019 became an Australian citizen. For these reasons I am satisfied that the two visa applicants meet the requirements of cl 101.211(1)(c) at the time of application, and continue to meet the requirements at the time of decision.

    Conclusions

15. For the reasons above, the first named visa applicant Yousef, meets the requirements of cl.101.211 at the time of application, he is an applicant who had turned 18 at the time of application and continues to satisfy the criterion in cl.101.211 at the time of decision and therefore meets the requirements of cl.101.221(2)(a)(i).

16. The second named visa applicant, Bruck meets the requirements of the criteria of cl.101.221 at the time of application, and he is an applicant who had turned 18 at the time of application. The second named visa applicant does not continue to satisfy the criterion in cl.101.211 at the time of decision only because he has turned 25 years and the second visa applicant continues to satisfy the criterion in cl.101.213 at the time of decision, and therefore meets the requirements of cl.101.221(2)(a)(ii).

17. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

18. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.211 and cl.221(2)(a)(i) of Schedule 2 to the Regulations; and

19. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 101 (Child) Visa:

    ·Cl.101.211, cl.101.213 and cl.101.221(2)(ii) of Schedule 2 to the Regulations.

    Margie Bourke
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …