Teferi (Migration)

[2021] AATA 3125

Teferi (Migration) [2021] AATA 3125 (16 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Emebet Hadgu Teferi

VISA APPLICANT:  Mr Kalayu Hadgu Teferi

CASE NUMBER:  1911681

HOME AFFAIRS REFERENCE(S):          BCC2019/155801

MEMBER:Naomi Schmitz

DATE:16 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations; and

·cl 600.232 of Schedule 2 to the Regulations.

Statement made on 16 July 2021 at 7:17am

ATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – sponsored family stream –‘Close relative’ requirement met– applicant is being sponsored by a settled Australian citizen –applicant genuinely intends to stay temporarily in Australia– strong incentives to depart Australia –family and work commitment in home country –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cls 600.211, 600.232

CASES
Khanam v Minister for Immigration & Citizenship [2009] FCA 966

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 Home Affairs on 11 March 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 January 2019. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia. In particular, the delegate did not find the visa applicant’s wife and dependent children, employment status and assets as sufficient inducements to return to Ethiopia. The delegate also found the applicant’s personal circumstance inconsistent with the length of stay requested, namely six months, which raised concerns that the visa applicant intended to travel for reasons other than a genuine temporary stay.

5. In addition, the delegate was not satisfied that the visa applicant was being sponsored by a ‘relative’ in accordance with cl 600.232 and failed to provide evidence in support. The delegate was therefore not satisfied that at the time of application the visa applicant was being sponsored by a prescribed person.

6. On 2 July 2021, the review applicant and visa applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, having regard to the nature of this matter and the individual circumstances of the review applicant and the fact that the visa applicant is currently living in Ethiopia and only able to provide evidence ‘virtually’. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and expeditious, and the delay to the matter if the hearing was not to be conducted by video conference. No concerns were expressed by the review applicant or visa applicant about the hearing being conducted in this manner, nor was there any indication that the review applicant or visa applicant had any difficulty in understanding or responding to the questions being put during the hearing.

7. 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

9. The visa applicant is a 48-year-old male from Addis Ababa, Ethiopia who applied for a visitor visa in the sponsored family stream. He is married with five dependent children. He is the owner and operator of a construction rental machinery business. The stated purpose of the visit was to ‘To visit my sister and her kids. She is our only sister who lives abroad outside Ethiopia. Besides to visit the beautiful Australia’. The visa application was accompanied by an investment permit, bank statement, the visa applicant’s passport, a motor vehicle title and a certified copy of the review applicant’s Australian citizenship certificate.

10. Prior to the allocation of the matter, the review applicant supplied to the Tribunal the following; an undated statement explaining the visa applicant’s personal and visa circumstances, a letter from North Western Mental Health dated 2 May 2019 evidencing that the review applicant was ‘engaging in mental health services’, a copy of the visa applicant’s passport, five photographs depicting the visa applicant and review applicant and various family members and the visa applicant and review applicants birth certificates depicting their parents’ names.

11. After this matter was constituted to the Tribunal Member, on 16 June 2021, the Tribunal wrote to the review applicant and requested updated information and records about the visa applicant’s employment, business and financial situation, including ownership of property and significant assets and any other information relevant to the visa applicant’s activities or commitments or relationships in his home country that would encourage him to return at the end of his visit.

12. On 19 June 2021 in response the Tribunal received; a bank statement from Lion International Bank SC with a closing balance on 19 June 2021 of $1,003,715.54 birr (equivalent to $30,000.00 AUD), a bank statement from Lion International Bank SC for the business ‘Kalayu Hadgu Construction Machine Rental’ with a closing balance on 17 March 2021 of $74,828.95 birr (equivalent to $2,278.60 AUD), a certified marriage certificate showing the visa applicant married his wife on 30 June 2004, certificates of titles for three properties and three motor vehicles, a business licence, a machinery rental agreement, the visa applicant’s passport and visas to previous countries he has travelled to including Germany and Uganda and an itemised list of countries the visa applicant has travelled to.

13. The first issue in this case is whether cl 600.232 is satisfied, which requires the Tribunal to be satisfied that the visa applicant has been sponsored by a settled Australian citizen, or a permanent resident, who is at least 18 and: a relative of the applicant; or a relative of another applicant who is a member of the family unit of the applicant; or a relative of another applicant in relation to whom the applicant is a member of the family unit. ‘Settled’ in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen means lawfully resident in Australia for a reasonable period.

14. The review applicant provided a certified copy of her Australian citizenship certificate showing a grant of citizenship on 29 September 2010. The Tribunal accepts that the review applicant is an Australian citizen. The Tribunal is also satisfied that the review applicant is ‘settled’ and at least 18 years, given the review applicant obtained Australian permanent residency on 16 February 2007 and from reviewing her travel movement records she has resided in Australia for a reasonable period and is currently 39 years of age.

15. In determining whether or not the visa applicant has been sponsored by a ‘relative’ requires consideration of the definition of ‘relative’ in reg 1.03 of the Regulations, which relevantly includes a ‘close relative’. ‘Close relative’ is defined in reg 1.03 and includes the spouse or de facto partner of the person, a child (including adopted child), parent, brother or sister of the person (and their ‘step’ equivalents).

16. In this case the visa applicant claims the review applicant is his sister. In support the review applicant provided a copy of her and the visa applicant’s birth certificates. The visa applicant’s birth certificate had his father’s name recorded as ‘Hadgu Teferi Hagos’ and his mother’s name as ‘Hadas Kahsay Hintsa’. His birthplace was recorded as ‘Tigray, Wenberet’. The review applicant’s birth certificate had her father‘s name recorded as ‘Hadgu Teferi’ and her mother’s name as ‘Hadas Kahsay’. Her birthplace was recorded as ‘Addis Ababa’. The Tribunal queried why the parent’s last names, namely ‘Hagos’ and ‘Hintsa’ were not included on the review applicant’s birth certificate and sought an explanation as to this discrepancy.

17. The visa applicant gave evidence that that only some places in Ethiopia use extra family names, in this case ‘Hagos’, which was his grandfather’s name. He confirmed ‘Teferi’ was his and the review applicant’s surname. He further stated this was the type of birth certificate they provided at the time and could not explain why ‘Hagos’ had been included in his birth certificate, but not the review applicant’s birth certificate.

18. The review applicant confirmed ‘Hagos’ was her grandfather’s name and that both the visa applicant and review applicant’s surnames are ‘Teferi’. She stated what names get included in the birth certificate can depend on what ‘officers’ ask which is then written on the birth certificate.

19. During the hearing the Tribunal asked the visa applicant if he could submit further evidence in support of the review applicant being a ‘relative’. The visa applicant stated he would contact his local municipality to try obtain additional documentation and also offered to undertake a DNA test.

20. On 5 July 2021, after the hearing the Tribunal wrote to the review applicant and stated if further documentation could not be provided, the Tribunal would accept a letter or statutory declaration from the local municipality and/or Embassy of Ethiopia explaining: how names are recorded in Ethiopia; whether the recording of names depend on what city a person is born in Ethiopia; whether names depend on what officers ask parents and then record on the child’s birth certificate; and if it is a practice in Ethiopia that ‘males/sons’ get extra names recorded on their birth certificates.

21. On 5 June 2021, the review applicant provided to the Tribunal a letter in Amharic, that was accompanied by an English translation from an accredited translator, from the local Municipality/Council ‘Registration and Information Branch Office’. This document confirmed that ‘Mrs Emebet Hadgu and Kalayu Hadgu Teferi’ are brothers and sisters’ and ‘are registered as children of Hadgu Teferi Hagos and Hadas Kahsay Hintsa’. The Tribunal is therefore satisfied that the review applicant is being sponsored by a ‘relative’ in accordance with cl 600.232. The review applicant also provided further photographic evidence depicting her and the visa applicant during their childhood and adulthood. The Tribunal is satisfied that these photos depict the visa applicant and review applicant and corroborates their claims of being brother and sister.  

22. The second issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

23. In the present case, the visa applicant seeks the visa for the purposes of visiting his younger sister and her two children aged five and 11 years. The visa applicant stated that ‘she is the only sibling that lives overseas, and she is alone. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

24. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)). The visa applicant has not travelled to Australia before, so there is no record of compliance or non-compliance.

25. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

26. The Tribunal is satisfied that the visa applicant intends to comply with Conditions 8101 and 8201 given he has applied for a visitor visa for the purposes of visiting family, the duration of the visit and the language barrier. Condition 8503 refers to lack of entitlement rather than an obligation so is not discussed here. Condition 8531 is discussed below in the context of whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

27. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

28. One of the reasons the delegate refused the visa was due to the visa applicant’s personal circumstances, which it perceived to be inconsistent with the visa applicant’s length of stay. In the visa applicant’s visa application, he stated he intended to visit between 1 March 2019 until 30 June 2019, and ticked the ‘stay up to 6-months box’. The Tribunal therefore sought clarification as to his intended length of stay and the reasons for selecting the ‘6-month box’.

29. The visa applicant stated he intended to stay for ‘one month’, with the possibly of adding a ‘couple more weeks’ at the end. He confirmed he is restricted due to his ‘business back home’ and that most countries allow travel visas for three months with some allowing for an extension of up to two years. He further explained he ticked the 6-month box to ‘provide him flexibility’ because if he got delayed due to work, or having to pay taxes to get his clearance, he would need further time to depart Ethiopia and was unsure as to what date he would be travelling. The Tribunal is satisfied with the visa applicant’s evidence which it found to be reasonable and logical. The Tribunal disagrees with the Department’s negative finding on this issue.

30. The Tribunal has also considered the purpose of the visit, which is for the visa applicant to visit his younger sister. He explained that he is ‘like a father to his sister’ and shares a close relationship with her. He also claimed to have paid for all her education. The review applicant gave evidence that she wished for the visa applicant to visit her and her two children and that the visa applicant would reside with her during his stay. She described the visa applicant as a ‘father figure’ and provided to the Tribunal a letter stating she was suffering from ‘loneliness’ and often got ‘home sick’, which has made her ‘depressed’ and led her to seek treatment from a psychologist. A report from the North Western Mental Health Service was provided in support which the Tribunal accepts as cogent evidence. This is a valid reason to apply for a visitor visa to Australia.

31. The Tribunal has also taken into account the incentives to return to Ethiopia at the end of the visa applicant’s visit. The visa applicant stated, ‘he has no reason to stay in Australia’. He has a wife who he has been married to for over 17 years, marrying her on 30 June 2004 and who he remains married and committed to. He also has five dependent children aged 19, 15, 10, 5 and 3 years of age who he loves and cares for.

32. The visa applicant further stated that he is one of 10 siblings and has six sisters and two brothers who all reside in Addis Ababa, Ethiopia. He confirmed his father and mother were deceased and that the review applicant was the only sibling living offshore. The Tribunal places significant weight on this evidence as an incentive to return to Ethiopia.

33. The visa applicant also stated he has a ‘business to run’ and that his wife assists in the operation of the business, undertaking ‘administrative work in the office’. He also stated that her main job is to ‘look after the children’ and confirmed the eldest child is enrolled at a private university and the other children are enrolled in secondary and primary school and the youngest in kindergarten. During the hearing one of the visa applicant’s sons featured on screen and hugged the visa applicant. The Tribunal is satisfied that the visa applicant’s family and business provide incentives for the visa applicant to return to Ethiopia.

34. The visa applicant also has three properties, including the ‘family home’ which the visa applicant acquired 15 years ago, an apartment and a 930 square metre block which the visa applicant plans to build on. The Tribunal put to the visa applicant that land in Ethiopia is available for lease only and is ‘government owned’. The visa applicant confirmed this was the case and that leases are for 99 years, but maintained that it was still property held in his name and that he owned the buildings on the land. Ethiopia’s property system appears analogous to owning residential land in Canberra, Australia which is leasehold, where people lease the land for 99 years and can build properties and live on Crown leased land.[1]

    [1] >

    The Tribunal was provided with certified property titles showing evidence of ownership for all three properties, which the Tribunal places significant weight on as an incentive to return to Ethiopia. There was no evidence before the Tribunal of the visa applicant attempting to sell or dispose of the land or having such an intention.

35. The visa applicant is also the owner of two motor vehicles including a 2010 model Toyota and a 1992 Toyota Landcruiser. The visa applicant also stated his wife owns a 2004 Suzuki motor vehicle. Certified titles of ownership for all three motor vehicles and other identification documents were provided in support which the Tribunal accepts as reliable and cogent evidence. Although all three motor vehicles are 10 years or more old, and arguably disposable assets, the Tribunal understands that ownership of motor vehicles is not high amongst the general population in Ethiopia and therefore places some weight this ownership.[2]

    [2] >

    The visa applicant also provided to the Tribunal a certified copy of his personal bank account in the name of ‘Kalayu Hadgu Teferi’ with a closing balance at 22 June 2021 of $1,003,715.54 birr which is equivalent to $30,000.00 AUD. The visa applicant also provided a bank statement of his company ‘Kalayu Hadgu Construction Machine Rental’ with a closing balance at 17 March 2021 of $74,828.95 birr equivalent to $2,278.60 AUD. The visa applicant estimated that he earned roughly $10 million birr per annum which equates to approximately $303,646.00 AUD. The Tribunal places some weight on these assets which are not insignificant given the visa applicant is supporting five children and his wife. The Tribunal enquired whether COVID-19 had affected the visa applicant’s business or salary. He stated that it had caused ‘minimum disruption and nothing significant’.

1. The visa applicant also provided as evidence of an incentive to return to Ethiopia a ‘Machine Rental Agreement signed 15 January 2021’ for 360 days between Kalayu Hadgu Construction Machinery Rental and Tewedros Habtamu and Eden Construction Material Supply Partnership. At the time of the hearing there were six months remaining. The visa applicant gave evidence that this was a sample of one of many machine contracts he had to operate his business. The Tribunal is satisfied that this provides reliable and independent evidence of the on-going nature of the visa applicant’s business into the future and places considerable weight on it as an incentive for the visa applicant to return home to Ethiopia.

2. The visa applicant also gave oral evidence and provided copies of his passport, depicting country stamps and various visas evidencing previous travel to Germany and Uganda including:

   (a)Frankfurt, Germany from 12 February 2017 to 13 March 2017;

   (b)Frankfurt, Germany from 16 July 2015 until 14 August 2015;

   (c)Uganda 21 May 2015 – 27 May 2015;

   (d)Uganda from 17 May 2014 to 29 May 2014;

   (e)Kenya from 29 May 2014 to 1 June 2014; and

   (f)Eritrea (date unknown).

3. The visa applicant stated he travelled to Germany for a ‘trade fair exhibition’ and Uganda for business and to see a friend. He stopped at Kenya temporarily after being in Uganda as the friend he was with was ill. The Tribunal places significant weight on the visa applicant’s compliance with his two visas to Germany. Due to Uganda, Kenya and Eritrea being so close to Ethiopia, the Tribunal places some weight on the visa applicant’s compliance with his visa conditions to these countries.

4. The review applicant gave evidence consistent with the visa applicant stating the visa applicant led a ‘stable life’ and was a ‘responsible person’ who ran a ‘successful business’. She said I can say ‘100% he will return’. He has a wife and five children. She stated in 2016 she travelled to Ethiopia and visited the visa applicant. She stated that the visa applicant also tells her ‘why don’t you come over to Ethiopia instead of me’ travelling to Australia. The review applicant presented as a credible and honest witness.

5. The Tribunal enquired with the visa applicant whether he had a well-founded fear of any form of persecution in Ethiopia due to his race, religion, nationality, membership of a particular social group or political opinion and whether this would provide a basis for him applying for a protection visa. The visa applicant stated he had 'lived all my life since the age of one in Addis Ababa and never had any issue’. He also confirmed he was ‘Christian Orthodox’ which the Tribunal notes is the largest religion in Ethiopia.[3] The visa applicant also stated because he lives in ‘metro everything is quite peaceful and that outside I think everyone knows what happens’. The review applicant gave evidence that she did not believe the visa applicant had ‘any fears of persecution and had no political involvement’.

   [3] Department of Foreign Affairs and Trade Report (DFAT) Report Ethiopia dated 12 August 2020 

6. The Tribunal explained that it needs to take into account the political, economic and security situation of a visa applicant’s home country, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade Report which states that despite Addis Ababa being a major diplomatic hub, Ethiopia is one of the most drought-prone countries in the world which has caused many drought-induced famines which have resulted in over one million deaths. Ethiopia is also one of the poorest countries in the world. Per capita income in 2019 the United Nations Development Program ranked Ethiopia 173^rd out of 189 countries in the 2019 Human Development Index situating it in a low human development category. Also, more than half the population does not have electricity and internet penetration and over 40 million people remain without access to safe drinking water. There have also historically been restrictions on political opposition and dissent and ethnic based clashes. There has also political instability with the resignation of the Prime Minister Desalen and the appointment of his successor Prime Minister Abiy Ahmed who has postponed elections due to COVID-19. In relation to security Al-Shabaab is known to operate in Ethiopia, including in Addis Ababa, with various attacks including in October 2013 with a bomb explosion in a residential area of Addis Ababa and in September 2019 where Al-Shabaab were planning to attack hotels, public places and religious festivities in Addis Ababa and Oromia and Somali states. The Tribunal put to the visa applicant and review apply why these would not be disincentives to return to Ethiopia. [4]

   [4] Ibid

7. The visa applicant did not dispute these facts stating ‘that is true. That’s why we are all working hard to change the situation in Ethiopia. That’s why we’re working hard. I live in Addis Ababa so you don’t have those issues and you don’t see much’. The visa applicant also explained the change of Prime Minister was due to ‘internal re-structuring’. He also explained that Al-Shaabab are ‘not there anymore’ and that he has always lived in Addis Ababa and never observed ‘ethnic problems’. He further explained that his wife is from a different ethnic group to him, being Amharic whilst he is Tigray, but that they live a ‘harmonious life together’. He stated he does not speak Tigray despite being officially Tigray. The visa applicant presented as a very honest and credible witness and the Tribunal accepts his evidence. The Tribunal also notes the visa applicant undertook significant efforts both before and after the hearing to produce independent and corroborative evidence in support of his evidence which was provided in a timely manner.

8. The review applicant in response to the country information stated that ‘All these issues are old ones and probably exaggerated as well’. She also stated that most of the issues have occurred outside Addis Ababa and maintained her brother lives a ‘normal’ and ‘stable’ life.

9. The Tribunal has had regard to the decision in Khanam v Minister for Immigration & Citizenship [2009] FCA 966, to the effect that the Tribunal must consider the particular circumstances of the visa applicant, rather than make broad assumptions based on information regarding a person of the same nationality or social group. The Tribunal accepts both the visa applicant and review applicant’s evidence and is of the view that the country information was largely irrelevant to the visa applicant and therefore places little weight on it as a disincentive to return to Ethiopia.

10. The Tribunal enquired whether the review applicant would be prepared to lodge a bond to guarantee the visa applicant’s return. The review applicant indicated she would be prepared to provide a bond in the sum of $1500.00 AUD to $2000.00 AUD . She explained this is all she could afford due to being a single mother with two young children and being in the process of looking for a new job after graduating from her university business degree.

11. The Tribunal accepts that if a security bond was required of the review applicant, the visa applicant would be highly motivated to ensure that he returns to Ethiopia before the expiry of his visa due to financial hardship cause to his sister in losing a security bond, as well as advise implications for future visa applications to Australia. The Tribunal is also satisfied that the visa applicant would abide by condition 8531 and not remain in Australia after the end of his permitted stay due to his family and employment circumstances which the Tribunal is of the view constitute significant incentives to return to Ethiopia.

12. Thus, considering all the above matters cumulatively, the Tribunal is satisfied that there are sufficient incentives for the visa applicant to return to Ethiopia. The Tribunal is also satisfied that the visa applicant and review applicant are ‘relatives’ for the purposes of cl 600.232 and that the review applicant is being sponsored by a settled Australian citizen who is at least 18 years of age.

13. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are met.

    DECISION

14. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations; and

    ·cl 600.232 of Schedule 2 to the Regulations.

    Naomi Schmitz
    Member