Sibhat (Migration)

[2021] AATA 1169

Sibhat (Migration) [2021] AATA 1169 (17 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Meresa Sibhat

VISA APPLICANTS:  Master Tekleweini Gebreanenya Asmelash
Miss Hiwet Gebreanenya Asmelash
Miss Rishan Gebreanenya Asmelash

CASE NUMBER:  1901957

DIBP REFERENCE(S):  2016047037 OSF2016047037

MEMBER:Stephen Conwell

DATE:17 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 17 February 2021 at 10:48am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – insufficient evidence to show visa applicants’ mother is deceased –review applicant is the uncle of the visa applicant– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

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

CASES
Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is a combined application for review of three decisions made by a delegate of the Minister for Immigration on 21 January 2019 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 applied for the visas on 4 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.

3. The review applicant (sponsor) provided a copy of the delegate’s decision to the Tribunal for the purpose of the review.  The sponsor was represented in relation to the review by his registered migration agent.

4. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video conference. The Tribunal exercised its discretion to hold the hearing by video conference. The sponsor raised no objections as to conducting the hearing by video conference. 

5. The Tribunal also received oral evidence from Mr Brhane Tesma. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya (Ethiopian) and English languages.

6. The sponsor appeared before the Tribunal via video conference on 11 February 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent (representative) who also attended the video hearing by video conference.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

8. 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. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211.

9. 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.

10. ‘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. 

11. 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.

12. The delegate refused to grant the visas because in each case the delegate was not satisfied that, at the time of application, the visa applicants were orphan relatives (as defined) of the sponsor (cl.117.211(a)) because she was not satisfied that the visa applicants’ parents were dead, permanently incapacitated or of unknown whereabouts (r.1.14(b)). Accordingly, the delegate was not satisfied that any of the visa applicants met cl.117.211 of Schedule 2 to the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The visa applicants are three siblings who are nationals of Ethiopia. The visa applicants were born in 2002, 2003 and 2006 respectively. They applied for the visas on 4 July 2016. The delegate refused to grant the visas because each of the visa applicants did not meet cl.117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicants were orphan relatives of the Australian relative.

14. The issue in this case is whether, at the time the visa applications were made on 7 September 2015, each of the visa applicants met cl.117.211(a) or (b). In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.117.221 as well.

15. In assessing these issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s files, as well as the oral evidence given at the hearing.

    Are each of the visa applicants an orphan relative of an Australian relative?

16. For the reasons below, the Tribunal finds that the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the Tribunal finds that the visa applicants are not orphan relatives of an Australian relative at the time of this decision. Therefore the Tribunal finds that cl.117.211(a) is not met and does not continue to be met at the time of decision.

    Age – r.1.14(a)(i)

17. Regulation 1.14(a)(i) requires that each visa applicant has not turned 18. The delegate’s decision records the applicants dates of birth are listed as below:

    ·Mr Tekleweini Gebreanenya ASMELASH     24/06/2002

    ·Ms Hiwet Gebreanenya ASMELASH            26/09/2003

    ·Ms Rishan Gebreanenya ASMELASH         27/05/2006

18. These dates are repeated  in the representative’s written submission of 2 December 2020. However both the birth and baptismal certificates of the applicant, Ms Hiwet Gebreanenya Asmelash list her birthday as being two days earlier, on  24 September 2003.  The Tribunal places no adverse weight on this inconsistency . The Tribunal would have greater concern if there was conflicting evidence as to the year of birth for any of the visa applicants. In this instance the explanation is likely to  be more prosaic in that it is possible that the Department has simply misread the hand-written information on these original documents, reading ‘24’ to be ‘26’.

19. The Tribunal reviewed information in the Department of Foreign Affairs and Trade’s (DFAT) country information report on Ethiopia[1]noting specifically that:

    Birth certificates are issued by the Vital Events Registration Agency (VERA) via the local
    administrative (kebele) office, within which jurisdiction the applicant was born.[2]  …

    Documents considered to be higher-risk in terms of fraud include birth certificates, death certificates and national identification cards.[3]

    [1]         DFAT, DFAT Country Information Report Ethiopia, 12 February 2021

    [2]         Ibid [5.42]

    [3]           Ibid [5.65].

20. Whilst the Tribunal acknowledges the statement in the DFAT Country Information Report it  is satisfied as to the ages of the three visa applicants.  Accordingly, the Tribunal finds that, at the time of application, all three visa applicants met r.1.14(a)(i). At the time of this decision, Hiwet and Rishan continue to meet r.1.14(a)(i). However, the eldest applicant, Tekleweini is now over 18 years of age, therefore he does not continue to satisfy the criterion in cl.117.211 for that reason alone. Thus he meets cl.117.221(b).   

    Spouse or de facto partner – r.1.14(a)(ii)

21. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.

22. There is no evidence or information before the Tribunal to suggest that, at the time of application or at the time of this decision or any time in between these two dates, any of the visa applicants has been married or in a de facto relationship.

23. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

24. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03.

25. As noted earlier, the Tribunal is satisfied that the sponsor is an Australian citizen. The issue for determination is whether he is a ‘relative’ of the visa applicants. 

26. The visa applicants claim that the sponsor is their paternal uncle – a familial relationship included within the definition of ‘relative’ in r.1.03.

27. The sponsor told the Tribunal that he was the uncle of the three visa applicants as they are the children of his brother, Gebreanenya Asmelash Sibhat.

28. The Department required the visa applicants to undertake DNA testing to confirm their relationship between themselves and with the sponsor. The results appear on the Department file.  The Tribunal has sighted the results of the test which for the most part strongly suggest that the visa applicants are all siblings and that the sponsor is their uncle.

29. Having regard to these results, the Tribunal is satisfied, on balance, that the sponsor is the  uncle of the three visa applicants. The Tribunal finds that the three visa applicants are respectively the nephew and nieces of the sponsor and are each a ‘relative’ of an Australian citizen. The Tribunal finds that the visa applicants each meet r.1.14(a).  Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – r.1.14(b)

30. 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.

31. In each primary decision the delegate notes that the applicant’s father had died on 19 February 2008 – a fact which appears not to be in dispute and which is recorded by a Death Certificate submitted as evidence. Rather, the decision to refuse the visa applications was based on the delegate not being satisfied as to the applicant’s mother, Libanos Gebrehiwet’s (Libanos) permanent incapacity due to her being diagnosed with epilepsy and schizophrenia.  

32. The evidence submitted to the Department in support of this claim included the following:

    ·evidence of the sponsor returning to Ethiopia and making several attempts to have Libanos admitted to a hospital to receive psychiatric care;

    ·evidence from hospitals confirming Libanos’ diagnosis of epilepsy;

    ·on 23 June 2014 family members from both the father’s and mother’s side gave authority to the sponsor to have guardianship of the three visa applicants due to their mother’s mental incapacity;

    ·on 9 July 3014 an Ethiopian Court (Wereda Court of Abeto) granted the sponsor guardianship of the three visa applicants due to their mother’s mental incapacity.

33. The evidence submitted by the applicant and his representative states that the eldest applicant and the youngest, Tekleweini  and Rishan, respectively, have been living with one relative whilst the middle child, Hiwet, lives with another. They have been cared for by relatives in  this fashion  for several years.

34. The sponsor has provided to the Tribunal evidence of having been granted guardianship of the visa applicants in 2014 by mutual decision of family members. This decision was then ratified by the Wereda Court of Adi Abeto, a local Ethiopian Court. The Tribunal does not dispute this evidence, however the grant of guardianship does not, of itself, establish the death of the visa applicants’ mother.  Guardianship may have been granted because of a parent’s unwillingness to take care of the children or perhaps for visa and migration  purposes. The fact that the sponsor has been given guardianship of the visa applicants does not support, in the Tribunal’s view, the claim that both parents are  now deceased.

35. According to the decision record, on 14 September 2018 the Department requested that the visa applicants’ mother be assessed by a panel physician to determine the veracity of the claim that she was permanently incapacitated. The evidence before the Tribunal reveals that the sponsor returned to Ethiopia on 13 November 2018 to assist the visa applicants’ mother, Libanos and spend time with the visa applicants. Libanos is said to have died on 28 November 2018, two months before the delegate’s decision. A certificate dated 3 September 2019, from the Lemlem Karl Hospital, states that Libanos had died “of respiratory arrest as complication of epilepsy on 28 November 2018.”  The certificate was provided to the Tribunal on 28 October 2019, however it was not provided to the Department prior to it making its decision dated 21 January 2019.

36. The sponsor told the Tribunal that he has spent a lot of money to support the children and to make regular visits to Ethiopia to maintain regular contact with them, although unfortunately the global pandemic prevented him from travelling to Ethiopia last year.  There is evidence of five ‘screen-shots’ of text messages between the sponsor and a friend in Ethiopia with whom he claims to have deposited approximately AUD 8,000 – 9,000 for the benefit of the visa applicants. These ‘screen-shots’ of text messages do appear to concern money transfers however they are undated fragments which do not convey sufficient meaning. There is also no commentary which might provide some context.  There is also a single receipt of money transfer on 26 July 2018 from the sponsor to this friend, in the sum of AUD 2,335. He states that would not have incurred this effort and financial cost were they were not his brother’s children. His brother’s death places a familial responsibility on him and this burden and the visa applicants’ ongoing visa complications have caused his own mental health to deteriorate. The evidence includes a letter dated 28 November 2020 from the sponsor’s own doctor stating that he has “reactive depression and PTSD” (post-traumatic stress disorder).

37. The sponsor has spent several years pursuing the case, despite his own marriage ending in divorce in Australia and in addition to his parental obligations to his own child. He referred to the political and civil unrest in Ethiopia which has prevented him from obtaining a formal Death Certificate in respect of the visa applicants’ mother.

38. The Tribunal has carefully considered this evidence. The Tribunal accepts that the sponsor and each of the visa applicants are related  to each other. It also accepts that the sponsor has been providing financial assistance to the visa applicants to some degree, although there is insufficient evidence of the amounts and regularity of such assistance. It  is satisfied that the sponsor’s claims of mental stress, depression and frustration due to the visa application process appear to be genuine.

39. The Tribunal  is satisfied that the visa applicants’ father is deceased. However it is the Tribunal’s view that there is insufficient reliable evidence to support the claim that the visa applicants’ mother is also deceased.  The Tribunal is concerned about the reliability of the hospital certification issued in support of this claim because of DFAT’s country assessment previously referred to and because there does not appear to be any independent verification of the information.

40. On 7 December 2020, a day before this matter was first scheduled for hearing, the representative requested a postponement of the hearing in order to seek further evidence in support of the claim that the visa applicants’ mother is also deceased. This request stated:

    I am writing this email to request for postponement of hearing invitation as instructed by the  review applicant above. The review applicant instructed me to request for postponement of the hearing to enable review applicant [to] provide to the Tribunal Dead(sic) Certificate for Mrs Libanose(sic) G/Hiwote issued by The National Regional State of Tigray.  The review applicant [is] unable to provide death certificate because of the current crisis in Ethiopia (civil unrest) affecting the review applicant relatives in Ethiopia to obtain such document “Dead(sic) Certificate for Mrs Libanose G/Hiwote”. The review applicant will provide the documents when it safe to do so with the authority concern.

    The review applicant requesting for extension of time to provide documents until 28 January 2021 due to the current crisis in Ethiopia.

41. The request was granted and the matter was re-scheduled to 11 February 2021.  Prior to the re-scheduled hearing, the sponsor submitted a copy of a letter dated 27 January 2021 from the Australian Red Cross, which states in part,

    As flagged during our initial assessment of your case, due to the scale of the current crisis in the Tigray region, it is anticipated that ICRC Addis Ababa will not be able to access Lemlem Karl Hospital in Maichew, Tigray to request an official death certificate at this time.  This is due to the large volume of ‘anxious for news’/ tracing enquiries the office is currently processing for family members who have recently lost contact with their loved ones as a result of the crisis. In addition to this, there are also restrictions on the movement of Red Cross staff/volunteer across the Tigray region & we continue to wait for feedback from ICRC Addis Ababa about whether they have access to the Maichew area at this time.

    In the event that ICRC Addis Ababa are not able to undertake a field visit to the hospital, we have requested their feedback on the death record you obtained from the hospital and whether this is consistent with death records that are issued by hospitals in the Tigray region. 

42. This latest evidence confirms the difficulty in obtaining official information from the Tigray region of Ethiopia due to the ongoing civil and political strife, however the Tribunal finds that it does not assist in establishing the death of the visa applicants’ mother. There is no formal records of her death, no evidence of burial or of any ceremony associated with her death and burial. The claim is made that the visa applicants’ mother died in on 28 November 2018, which is well before the COVID pandemic emerged. Despite the ongoing civil strife in Ethiopia, the Tribunal is not satisfied by the sponsor’s claim that it has not been possible to obtain a death certificate or some other credible record in the intervening two years.  On the material before it, the Tribunal is not satisfied that the visa applicants’ mother is dead.

43. The witness, Mr Brhane Tesma gave evidence of limited utility – he confirmed that he was a friend of the sponsor. He knows the sponsor’s ex-wife and has some knowledge of the sponsor’s family in Ethiopia. He played a role in informing the sponsor of the death of the sponsor’s brother in 2008 and participated in the funeral ceremony conducted by the sponsor in Australia to mark his brother’s passing.

1. After careful consideration of the evidence before it the Tribunal is not satisfied that the visa applicants cannot be cared for by their parents because each of them is dead, permanently incapacitated or of unknown whereabouts. The Tribunal is not satisfied the visa applicants meet r. 1.14(b) and that they are orphan relatives of the sponsor. There is no evidence that the visa applicants were adopted by the Australian relative, for the purpose of cl. 117.211(b). The Tribunal is not satisfied the visa applicants meet cl. 117.211 and cl. 117.221. 

2. There is no suggestion that the visa applicants are children, or adopted children, of the Australian relative. They do not meet the requirements for the grant of the Child and the Adoption visa.

   Conclusion

3. For these reasons, the criteria for the grant of a Subclass 117 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH.

   DECISION

4. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

   Stephen Conwell
   Member

   ATTACHMENT – RELEVANT LAW

   Migration Regulations 1994

   1.14Orphan relative

   An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

   (a)the applicant:

   (i)has not turned 18; and

   (ii)does not have a spouse or de facto partner; and

   (iii)is a relative of that other person; and

   (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

   (c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.