Yigzaw (Migration)

[2018] AATA 3006

Yigzaw (Migration) [2018] AATA 3006 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gedamu Mersha Yigzaw

VISA APPLICANTS:  Miss Adina Mersha Yigzaw
Miss Mulunesh Mersha Yigzaw
Miss Kassech Mersha Yigzaw

CASE NUMBER:  1606362

DIBP REFERENCE(S):  2014044711 / 2014044712 / 2014044713

MEMBER:Kira Raif

DATE:12 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2018 at 8:12am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative – Orphan relatives of Australian relative – Date of births – Age difference – Priests’ evidence – No baptism records – Recollection of precise dates by priest – Birth records by Social Courts – Self-reported dates on passport – Reliability of evidence – Decision under review affirmed

LEGISLATION
Migration Act (Cth) ss 65, 359AA
Migration Regulations 1994 (Cth), rr 1.03, 1.14, Schedule 2 cls 117.111, 117.211, 117.221

CASES
EC v MIMIA [2004] FCA 978

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 1 March 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. They applied for the visas on 3 December 2014. The delegate refused to grant the visas because the applicants did not meet cl.117.211 and cl. 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicants were orphan relatives of their Australian relative. The sponsor (“the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 14 June and 28 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the family priest. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 visa applicants claim to be sisters of the sponsor. Their brother also made an application for a visa but is not included in the review application. The visa applicants claim that their father is Mr Tarekeng Mersha Yigzaw and their mother is Sezaba Yirga Yamrut and that they are both deceased.

8. The primary decision record, a copy of which the review applicant provided to the Tribunal, indicates that in his own visa application made in 2011, the sponsor declared different dates of birth for the visa applicants. Further, the sponsor was interviewed in May 2011 by a Departmental officer in Sudan and stated that all of his siblings (the visa applicants) were over the age of 18. However, in an FOI request made in September 2012, the sponsor declared that the UNHCR Resettlement Registration Form was incorrect and that the record of the interview held in May 2011 is not consistent with the UNHCR Form. The sponsor explains that the interpreter had not interpreted correctly during the interview and he could not correct the information. The sponsor stated that he was unaware of his siblings’ dates of birth but specified the years of birth (from 1988 to 1993 in the Ethiopian calendar). The delegate noted that this was inconsistent with the information the sponsor provided in his UNHC interview in 2010 and the Departmental interview in May 2011.

9. The primary decision record indicates the visa applicants’ brother was interviewed in November 2015 by an officer of the Department. He stated that his father has been dead for 15 years and his mother died of a stomach ache. The visa applicant was unable to state the dates of birth of his siblings or state the age difference. In response to the natural justice letter the sponsor explained that there are no accurate records relating to the dates of birth, the sponsor notes that birth dates are of no importance in the Ethiopian culture and noted the difference between the Ethiopian and Gregorian calendars. The sponsor referred to the visa applicants’ limited English and generally difficult circumstances that he claims had affected their evidence. The sponsor suggested that when completing the forms, the dates of birth had been incorrectly converted from the Ethiopian calendars and such errors were not deliberate.

10. The Tribunal finds these submissions unconvincing. Firstly, the parties had ample time when preparing the visa applications and the relevant paperwork to convert the calendars and calculate their dates of births. If they were not sure what the dates were, they could have checked these before submitting the forms. Given that the age requirement is part of the definition of the term ‘orphan relative’, the applicants would have been well aware of the significance of their age and the need for accurate information. The Tribunal is not persuaded by the review applicant’s argument that an error was made, given that such claims were only made in response to the delegate’s concerns about the visa applicants’ ages.

11. Secondly, the Tribunal is mindful that the information supplied in the present application concerning the visa applicants’ dates of birth is inconsistent with the information the sponsor supplied in his own interviews. The Tribunal acknowledges the various explanations provided by the sponsor, including his suggestion that there were errors in translation, but in the Tribunal’s view it is equally plausible that the information supplied earlier was correct and that the information in the present application was changed to assist the visa applicants in obtaining the visas. If there were errors in translation, there is no evidence that the review applicant has taken any steps to correct such errors until the concerns with the present application arose.

12. Thirdly, the Tribunal also places weight on the information in the primary decision record indicating the visa applicants had difficulties identifying their age and the age difference. While the Tribunal is prepared to accept that due to cultural norms, they may not be familiar with their precise dates of birth and such dates are of no significance, the Tribunal does not accept that such cultural norms would preclude their understanding of the age difference between siblings.

13. In his written submission to the Tribunal of 7 June 2018 the review applicant states that the visa applicants are his sisters. Their precise dates of birth are unknown as birth registration did not occur at the time of births but their baptising priest estimates dates of birth as 1998 1999 and 2000.  It is stated that the children’s father was killed in approximately 2000 and their mother died in childbirth delivering the third named applicant. Since the parents’ deaths, the children had lived as orphans, supported by their uncle and the church community.

14. With respect to the visa applicants’ age, the review applicant states that there is a letter from the priest dated 12 February 2016 setting out the children’s dates or births. The review applicant refers to the letters issued in 2012 and signed by the church, the local authorities and social court that relate to the children’s ages and the passports that were issued in 2014 on the basis of birth certificates as proof of identity. The review applicant submits that passports should be considered as evidence of age and the process for the issuance of these documents is consistent with the country information concerning the registration of births in Ethiopia.

15. With respect to the discrepancies in the information provided in the earlier interviews, the review applicant relies on his earlier submissions. The review applicant notes that he was not interviewed and does not claim to know his siblings’ precise dates of birth. The review applicant acknowledges the inconsistencies in evidence but claims he provided plausible explanations for such inconsistencies. The review applicant notes that there is no birth registration system in Ethiopia, the applicants are from a rural area and are unlikely to know their dates of birth. The review applicant notes that he did not speak English when his application was made and was unable to review the documents.

16. The review applicant told the Tribunal in oral evidence that the children were baptised and at the time of baptism, the local priest would have made a record about the baptism. The review applicant said the priest has provided a statement to the court and on that basis the birth certificates were issued. The review applicant confirmed that the birth certificates were issued on the basis of evidence from the priest and the uncle and that there was no independent checking of the information but, the review applicant claims, the proper process was followed by the local court before the birth certificates were issued.

17. The priest’s oral evidence to the Tribunal was that they do not keep records of baptisms but he said he recalls the visa applicants’ baptism.

18. The review applicant provided to the delegate and subsequently to the Tribunal evidence from the local priest who refers to the children being baptised. The Tribunal is concerned about this evidence if it was based on the memory of the priest, given the time that has passed and the likely number of baptisms that the priest would have performed in these years. The Tribunal does not consider it plausible that the priest would recall the dates of baptism for the visa applicants in the absence of any written and the priest confirmed in oral evidence to the Tribunal that there are no written records of baptisms.

19. The Tribunal took oral evidence from the priest at the review applicant’s request. The priest gave the Tribunal the precise dates of the visa applicants’ baptisms but told the Tribunal that he could not recall other children or other baptisms. The priest told the Tribunal that a long time has passed and he could not recall any names, let alone the dates of baptisms of anyone else. The Tribunal finds that evidence problematic. The Tribunal accepts that it may be difficult, if not impossible to recall the dates of every baptism performed over many years in the absence of written records. However, for that very reason, the Tribunal does not accept that the priest would recall the precise dates of baptism of the visa applicants while having no recollection of any dates or other details in relation to any other child he may have baptised. The priest explained that he is close to this family but he also said that he forgot the baptism date for another sibling who passed away.

20. The review applicant told the Tribunal that the children were looked after by the church and for that reason there may be a closer connection between the priest and the family. However, the priest’s evidence to the Tribunal, which was put to the review applicant pursuant to s. 359AA of the Act, is that the church helps by asking the children ‘how are you’ and ‘how are you going’ and the priest did not mention other forms of help. If that is the extent of the help provided by the church, the Tribunal does not accept that there is, or had been, a particularly close relationship between the children and the church and the priest, rendering the priest more aware of the family and of the visa applicants’ circumstances. This is supported by the fact that the priest was unable to recall the date of the baptism of the other sibling despite the claimed close relationship.

21. The review applicant explained to the Tribunal that the priest is not well educated and lives in a remote area and is not confident with giving evidence and has no experience. In his post-hearing submission to the Tribunal of 11 July 2018 the review applicant repeats that evidence. The review applicant states that the priest does not frequently use the telephone and is not used to answering questions and he found the process challenging. He is also an elderly priest from a rural area with limited access to official facilities and telephones. The Tribunal acknowledges all of that evidence but is mindful that the oral evidence was taken from the priest at the review applicant’s request. Presumably, the review applicant was well aware of these limitations and if he believed that as a result of these, the priest was unable to give evidence, or that his evidence would be unreliable, the review applicant would not have requested the Tribunal to take evidence from the priest. His indication that he wanted the priest to give oral evidence to the Tribunal indicates that the review applicant believed such evidence to be reliable. The Tribunal is also mindful that the priest did precisely state the dates of birth of the three visa applicants, despite the claimed age and inability to use the phone and other concerns raised by the review applicant. The Tribunal does not accept that the priest would be capable of giving evidence in respect of some matters but not in relation to others. Thus, the review applicant’s concern appears to be with unfavourable aspects of the priest’s evidence, rather than with the priest’s capacity to give evidence.

22. The Tribunal accepts that the church may have provided support to the family but the Tribunal is not satisfied that the support was of such nature or extent as to render the priest familiar with the family’s circumstances. The Tribunal is not satisfied that the priest would have any recollection of the precise dates of birth of the visa applicants. The Tribunal has formed the view that the evidence of the priest was given to support the visa application and at the request of the visa applicants or the review applicant. The Tribunal is of the view that the only reason the priest could ‘recall’ the dates of baptisms of the visa applicants is because he had been requested to specify these dates and his inability to answer other questions or recall other dates was due to the fact that he was unprepared to answer such questions. In these circumstances, the Tribunal does not accept the evidence of the priest as truthful or probative and the Tribunal gives his written and oral evidence no weight.

23. The Tribunal also acknowledges that the visa applicants provided passports with their dates of birth but these were based on the parties’ self-reported date of birth and not on any independent verification by the authorities. The review applicant’s evidence to the Tribunal is that the passports were issued on the evidence of the priest and an uncle and the Tribunal does not consider such evidence reliable. In his submission to the Tribunal of 11 July 2018 the review applicant states that priest was required to provide evidence to the court in order for the birth certificates to be issued. The Tribunal does not consider evidence of the priest to be reliable in the absence of any written records of births or baptisms over the years. The Tribunal accepts that the birth records were obtained following the official procedure available in Ethiopia but if such procedures do not provide for contemporaneous record keeping and are based on oral evidence without other reliable independent evidence, the Tribunal does not consider such documents probative.

24. The Tribunal has the same concerns with the birth records from the Social Court and the local administration. While the Tribunal accepts that these records were issued, the Tribunal is not satisfied these authorities conducted independent verification of the children’s dates of births other than relying on the oral evidence from the church authorities or others, offered many years after the births. Contrary to the review applicant’s submission, the issue here is not that he is being held to a higher standard of evidence that is available to him but whether there is probative and reliable evidence of the visa applicants’ dates of birth to allow the Tribunal to be satisfied that the visa applicants meet the requirements in relation to their age. The Tribunal considers the presented evidence unreliable and insufficient.

25. Ultimately, the Tribunal is not satisfied as to the visa applicants’ dates of birth and the Tribunal does not consider the various records and evidence relating to their dates of birth to be reliable. This is particularly so given the discrepancies in the evidence of the visa applicants and the review applicant in his own dealings with Immigration, as set out above. Overall, the Tribunal is not satisfied on the evidence before it that the visa applicants were under the age of 18 at the time when they made the applications for the visas and for that reason, the Tribunal is not satisfied they are orphan relatives of an Australian relative. They do not meet r. 1.14 and cl. 117.211(a).

26. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978. There is no evidence of the visa applicants being adopted by an Australian relative. Accordingly, cl.117.211(b) is not met. The Tribunal is not satisfied the visa applicants meet cl. 117.211.

27. The Tribunal questioned the review applicant about other aspects of the definition of ‘orphan relative’, in particular the circumstances relating to his parents’ deaths. However, having made the finding above, it is not necessary for the Tribunal to consider the other criteria.

28. There is no suggestion that the visa applicants are children or adopted children of the review applicant. They do not meet the requirements for the grant of the Subclass 101 and Subclass 102 visas.

    Conclusion

29. 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

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

    Kira Raif
    Senior Member