SAHILE (Migration)

[2019] AATA 3773

SAHILE (Migration) [2019] AATA 3773 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abebe Tizazu SAHILE

VISA APPLICANTS:  Mr Anteneh Chanyalew KEBEDE
Ms Yeshiwork Chanyalew KEBEDE

CASE NUMBER:  1620711

DIBP REFERENCE(S):  OSF2014/044553

MEMBER:Kira Raif

DATE:3 July 2019

PLACE OF DECISION:  Sydney

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 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 03 July 2019 at 2:29pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – visa applicants ‘parents are dead – full sibling relationship proven – review applicant is the grandfather of both visa applicants – definition of ‘orphan relatives’ met – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359

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 24 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 nationals of Ethiopia, born in October 1996 and 1998 respectively. The visa applicants applied for the visas on 1 October 2014. 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 19 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. 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. 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 a copy of the primary decision records which contain the following information.

8. The visa applicants claim to be grandchildren of the sponsor as the sponsor is said to be the father of the visa applicants’ mother. The primary decision records indicate that in his own application made in 2009, the sponsor did not declare the mother of the visa applicants, Azemara Abebe Tizazu as his daughter. In their interview, the sponsor and his wife decalred that they had one child who died in 1990 while the visa applicants were born in 1996 and 1998.

9. In response to a natural justice letter, the sponsor stated that he had married the visa applicants’ aunt but their relationship ended after five years. He did not recognise that she was pregnant. The applicant claims that in the 2009 interview he told the interpreter that it was his sister who passed away and not his daughter. The sponsor claimed that he did not declare his daughter during the interview because he was not aware of her existence.  The sponsor states that the interpreter misinterpreted his evidence at the interview. The delegate noted that while the sponsor claims he stated at the interview that it was his sister who passed away, he only declared one sibling in his migration interview, Demisse Biru, who died in 1992. The sponsor explained that this was his brother, who died a long time ago, and his sister died later. The delegate formed the view, having regard to these inconsistencies, that the sponsor was not credible in relation to his family composition. The delegate was not satisfied that the visa applicants were relatives of the sponsor.

10. With respect to the visa applicants’ orphan status, the visa applicants claim that their parents are deceased. The visa applicants submitted with their application copies of their parents’ death certificates issued in 2013 and 2014. The delegate noted that the death certificates were recently issued with no record of the cause of deaths. The sponsor was questioned about the circumstances of the deaths in the interview. He is recorded to have stated that his daughter visited relatives in a town of Gojam where she died. His son in law died suddenly. He did not know other details about the parents’ deaths. The sponsor stated that he learned about his son in law’s death when he attended his daughter’s funeral even though he also claims to have been in touch with his daughter since March 2010. The delegate was not satisfied the visa applicants’ parents were deceased.

11. The review applicant provided to the Tribunal a copy of his submission to the delegate and a submission addressing the delegate’s findings. The review applicant reiterated the claims he made to the delegate. He states that in his 2009 interview he told the interpreter that it was his sister who passed away and not his daughter. He did not declare the daughter as he did not know she was born. The local court had issued official documents confirming his relationship with his daughter. The review applicant indicated his willingness to undergo DNA testing to prove relationship.

12. The review applicant states that he first contacted his daughter in March 2010. He later heard the news from his brother that his daughter passed away on 29 January 2014. He travelled to Ethiopia in March 2014 to mourn for his daughter.

13. With respect to the death certificates, the review applicant states that death records are not issued upon death in Ethiopia and are not automatically registered in remote or rural areas and death certificates are normally obtained from the local municipality. The review applicant states that he has not provided any false information.

14. The review applicant provided to the Tribunal declarations in support of his claims. The review applicant provided additional documents to the Tribunal on 13 November 2018. These included the first named visa applicant’s police certificate and school reports, copies of the children’s passports and a declaration from the children’s guardian who ‘assigned’ the care of the children to the sponsor. 

15. In oral evidence to the Tribunal the review applicant stated that when his former wife got pregnant, they had a fight and he left for Eritrea. He was away from Kenya and later on his brother told him that he had a child. They used to communicate by phone and later on he learned that she passed away. The review applicant said that he found out about his daughter in 2010, after he came to Australia.

16. The review applicant said that his daughter died suddenly, he was not sure what the cause of death was. Once he knew that she passed away, he went to Kenya to comfort the children. The review applicant said the only evidence of his daughter’s death was a court-issued death certificate. He said the document was issued on the testimony of three witnesses.

17. The review applicant said he was not sure about the circumstances of death of his son in law. He said he died suddenly but he did not know the details. The death certificate was issued by the court. The Tribunal made arrangements to verify the death certificates through the Department and the overseas post. In February and March 2019 the Tribunal received advice from the overseas post that the death certificates relating to the visa applicants’ parents were genuine. On the basis of this evidence, the Tribunal is satisfied that the visa applicants cannot be cared for by their parents because each of them is dead. The visa applicants meet r. 1.14(b).

18. With respect to the relationship, the review applicant agreed to undertake the DNA testing. The Tribunal received the results of the tests on 24 June 2019. These show that the sponsor’s relationship with Yeshiwork was ‘unlikely’ while the sponsor’s relationship with Anteneh was ‘very likely’. It is stated that the full sibling relationship between the two visa applicants was ‘practically proven’. The Tribunal provided this information to the review applicant pursuant to s. 359a of the Act and received the review applicant’s response on 3 July 2019. The review applicant confirms that he is the grandfather of both children.

19. The Tribunal has considered the results of the DNA tests. As noted above, the review applicant has been confirmed as the grandfather in relation to one of the visa applicants but not the other. However, the full sibling relationship between the two visa applicant has been proven. It does not seem possible, in the Tribunal’s view, that the review applicant would be related to one but not the other visa applicant, given that they are full siblings and share the same parents. The DNA result confirms that given that result, the review applicant’s relationship with the second visa applicant cannot be excluded. Thus, the Tribunal is satisfied that the review applicant is the grandfather of both visa applicants and that they are relatives of the sponsor. They meet r. 1.14(a)(iii).

20. With respect to the visa applicants’ age, the Tribunal acknowledges the various documents submitted with the application, which include the children’s schooling records, statements and personal identity documents. On balance, the Tribunal accepts that these accurately reflect the visa applicants’ ages and finds that the visa applicants were both under the age of 18 when the application was made. There is no evidence that the visa applicants have a spouse or de facto partner. The Tribunal finds that the visa applicants meet r. 1.14(a)(i) and (ii) and they meet r. 1.14A.

21. In relation to the children’s best interests, the review applicant told the Tribunal that he has been supporting the children and his brother also provides them with support. The review applicant said that the children will live with him and his wife and they will try to get bigger accommodation once they arrive. The review applicant expressed his willingness to continue to support the children. The Tribunal is satisfied that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicants. Accordingly, r.1.14(c) is met.

22. The Tribunal finds that the visa applicants met the definition of ‘orphan relatives’ in r. 1.14 when the application was made and that they continue to meet this requirement at present. They meet 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 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 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