1935686 (Migration) - [2023] AATA 4876

1935686 (Migration) [2023] AATA 4876 (7 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1935686
MEMBER:Maxina Martellotta
DATE:7 August 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the 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 07 August 2023 at 10:32am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – orphan relative of an Australian relative – half-brother – no parental care – father deceased – mother missing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cls 117.211, 117.221
CASES
Claridge v MIBP [2013] FCCA 1953
Mercado v MIAC [2007] FMCA 1216
Nguyen v MIMA (1998) 158 ALR 639
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 November 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth).
The visa applicant applied for the visa on 12 October 2017. 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.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211, which requires that, at the time of application, the visa applicant meets the definition of orphan relative as defined in reg 1.14:
Reg 1.14 Orphan 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.
The criterion in cl 117.211 must continue to be satisfied at the time of decision, or it must be the case that the only reason the criterion is not satisfied is because the visa applicant has turned 18 (cl 117.221).
In this matter, the delegate refused to grant the visa because the visa applicant did not meet cl 117.211 or cl 117.221 of Schedule 2 to the Regulations because the delegate concluded that the visa applicant did not satisfy reg 1.14(b) and so did not meet the definition of orphan relative.
The review applicant appeared in person before the Tribunal on 18 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from [the visa applicant], and from a relative, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages. In addition to oral evidence and submissions received at hearing, the Tribunal has also considered materials contained in the Department file and materials provided to the Tribunal by the review applicant.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant meets the definition of orphan relative. The specific issue that arises from the delegate’s decision is whether the applicant cannot be cared for by either parent because each of them are either dead, permanently incapacitated or of unknown whereabouts.
Is the visa applicant an orphan relative of an Australian relative?
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.
‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. 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): reg 1.03.
In the present case, [the review applicant] is the relevant Australian relative.
For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.
Age – reg 1.14(a)(i)
Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. According to documents provided in support of his visa application, the visa applicant was born in [month and year].[1] The visa application was made in October 2017. The Tribunal is satisfied and finds that at the time of application, the visa applicant was [age] years of age. At the date of decision, the applicant is [age] years of age.
[1] The Tribunal notes that the dates are based on the Gregorian calendar and not the Ethiopian Ge’ez calendar
Reg 1.14(a)(i) was met at the time of application but is not met at the time of decision.
Spouse or de facto partner – reg 1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. At hearing the review applicant and the visa applicant stated in their evidence that the visa applicant has never had a spouse or defacto partner. The visa applicant told the Tribunal that he has never been in such a relationship and is single. This evidence is consistent with claims made by the visa applicant in his visa application. The Tribunal is satisfied that reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.
Relative – reg 1.14(a)(iii)
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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa
The review applicant provided a copy of her certificate of Australian Citizenship. This confirms she acquired citizenship [in] November 2016. The Tribunal is satisfied that she is an Australian citizen.
In the visa application, the visa applicant declares that his mother is [Ms B] and that the review applicant is his half-sister as they both have the same mother. Birth certificates provided to the Department certify that the review applicant’s mother is [Ms B], and the visa applicant’s mother is [Ms B].
A report of DNA results provided to the Tribunal dated 19 April 2021 reported that the mitochondrial sequence analysed at the two hypervariable regions between the review applicant and visa applicant was found to be identical, indicative of them sharing the same maternal lineage. The Report concludes that the result of a kinship testing procedure which took samples from the review applicant and visa applicant confirm very strong support that [the review applicant] and [the visa applicant] share the same DNA sequence through being maternally related (that is, siblings/first cousins etc).
At hearing the review applicant and visa applicant confirmed in evidence that they are half siblings as they have the same mother. The DNA result is consistent with the oral evidence.
The Tribunal is satisfied and finds that the visa applicant and review applicant are maternal siblings. The Tribunal is satisfied that the visa applicant is the review applicant’s half-brother. The inclusion of a ‘half-relationship’ has been judicially considered. In the decision Mercado v MIAC[2] the Federal Magistrate’s Court accepted as correct the approach taken by the Administrative Appeals Tribunal to rely upon the ordinary meaning of brother as including a reference to a half-brother. In the matter of Claridge v MIBP[3] the Court agreed with the reasoning in Mercado and found that the term brother included half-brother.
[2] [2007] FMCA 1216
[3] [2013] FCCA 1953
The Tribunal is satisfied that reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.
No parental care – reg 1.14(b)
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.
In the visa application, the visa applicant claims that his father ([Mr C]) is deceased, and his mother is missing. A translated copy of a death certificate for [Mr C] was included in the Department file. It states that he died in November 2013. This information was consistent with oral evidence presented at hearing. The Tribunal is satisfied and finds that the visa applicant’s father is dead.
In relation to the whereabouts of the visa applicant and review applicant’s mother the following evidence was presented.
Oral evidence of review applicant
[The review applicant] told the Tribunal:
a)After her parents separated, she was left in the care of her father’s family, but she maintained contact with her mother.
b)Her mother remarried ([Mr C]) and they had three children: [Child D], [Child E] and the review applicant. Her mother and [Mr C] also adopted two other children who were the children of a deceased uncle (her mother’s brother).
c)After she came to Australia, she maintained regular contact with her mother by telephone. She was aware that her mother was experiencing significant personal difficulties when the eldest son [Child E] went missing, and then [Child D] died in 2012. When [Mr C] died in 2013, this further exacerbated her mother’s circumstances.
d)In late 2015 she had problems contacting her mother on the telephone and she was told by family members that her mother had gone missing from the home, leaving her brother and the adopted siblings. A cousin, [Mr F], took care of the children. She provided her cousin with funds for this purpose. Whilst her cousin did what he could, it was limited.
e)Due to her own personal circumstances, she has not been able to travel to Ethiopia to try to find her mother. She has maintained regular contact with her half brother (the visa applicant) and decided to sponsor his visa application. About two years ago, the adopted siblings left to look for work and since then the visa applicant has been on his own.
f)She has spoken to family members in Ethiopia to try to find out if anyone knew what had become of her mother. Her cousin [Mr F] said that they reported her mother’s disappearance to the police, but the police were not interested in looking into the matter. Family members in Ethiopia were reluctant to get any organisation such as Red Cross involved, mainly because of the political situation in Ethiopia and concerns about coming to the attention of authorities if inquiries were made.
g)Her cousin [Mr F] was involved in obtaining a court order declaring that her mother was missing to assist in the care of the children.
h)The political situation in Ethiopia is volatile and she can only surmise what has happened. She does not know what has become of her mother.
The Tribunal asked the review applicant to clarify her statement in a Statutory Declaration (dated 14 September 2017) submitted to the Department in which she declared that “… Until February 2017 I tried to contact my mother again but only found out that my mother had gone missing since October 2015…” The review applicant clarified that she was aware her mother had been missing from 2015 but that she kept trying to call her until 2017. The Tribunal accepted her clarification.
The visa applicant provided the following evidence:
a)After his father died, he was living with his mother and siblings prior to his mother leaving. He was about [age] or [age] years of age when his father died.
b)After his father died, his mother became very sad. She was upset at the death of her son and by the disappearance of her other son.
c)He recalls that when he was about [age] years of age, his mother told him that she was leaving the house to go somewhere but she did not return. His mother did not give him information about what she was intending to do.
d)Since then, he has not seen or spoken to his mother. He does not know what has happened to her. At the time there was a lot of political unrest.
e)His family members in Ethiopia tried to find his mother. They reported the matter to the police, but the police were not interested and did nothing. His sister (the review applicant) suggested that they approach services such as the Red Cross, however, his relatives in Ethiopia did not want to do this. They were worried about coming to the attention of authorities if such an agency started making inquiries. In the political circumstances, they preferred to not come to the attention of authorities.
f)He remembers his cousin [Mr F] seeking assistance from the Office of Women and Children and an order being made by the Court. But he does not really know much about that because at the time he was about [age] years of age.
g)His cousin [Mr F] tried to help him and his adopted siblings, and his sister (the review applicant) was sending money to [Mr F] to assist in their care. His adopted siblings left the home to look for work about two years ago and since then he has been on his own. His cousin [Mr F] is a [Occupation 1] but has also since left the area due to some political concerns.
[Mr A] provided the following evidence:
a)He lives in the United States.
b)The visa applicant’s mother ([Ms B]) is his cousin.
c)[Ms B] is the mother of the review applicant and the visa applicant.
d)He was in contact with his cousin from time to time by telephone.
e)He is aware that his cousin’s son and husband both died.
f)The last time he recalls being in contact with his cousin was a phone call in early 2015. She never indicated in that call any plans to leave her home or town.
g)He found out that his cousin was missing when he was contacted by family members in Ethiopia who told him that his cousin had left home and had not returned.
h)He became involved in trying to locate his cousin. He telephoned family members and local friends to make inquiries, but no-one had any information about her whereabouts. He encouraged people to look for her. In February 2022 he travelled back to Ethiopia and even though she had been missing for about six years by that time, he personally made inquiries with locals and family members.
i)The family members are unsure about what happened to his cousin. Early on some relatives thought she might have been abducted for a ransom but given no contact or request for money has ever been made, that scenario is unlikely. He notes that there is always political tension and perhaps something happened to her. Her disappearance is not consistent with her usual behaviour or character.
j)The family did report the matter to the police, who did nothing; there is no real justice or action by the police. They say if you find out something let us know.
k)Family members in Ethiopia were reluctant to get an agency such as Red Cross involved because they are fearful of coming to the attention of authorities if inquiries are made by such an agency. This is because of the political situation in Ethiopia and because not everyone believes such agencies are independent of the government
The Department file included a translation of a Court Order dated [in] April 2017, which states that following written submissions provided by the [specified] Office the Court determines that: “…the guardian of the children, [Ms B] is departed from her home during 13/10/2015 and her address is unknown, being healthy.” At hearing, the review applicant and visa applicant confirmed that this was the proceedings initiated by their cousin [Mr F] who approached the office of Women and Children for assistance. The reasons of the decision (as translated) state that the court was satisfied to make the declaration after taking evidence from three witnesses and after announcements were made in different media.
According to the Ethiopian Civil Code[4], a declaration of absence can be made upon application by an interested person to a court where a person has been missing for a period of two years. The declaration will generally be made after announcements have been made in a manner prescribed by the Court. Ethiopian law requires that such declarations are to be carefully considered as it uses the measure that the death of the missing person appears probable in order to determine the application and requires the court to consider all the relevant circumstances.[5]
[4] Chapter 4 Art.154 -162
[5] Declaration of Absence and its effects under Ethiopian law – Fikadu and Associates Law Office accessed 1/8/23
The evidence about the disappearance of the visa applicant and review applicant’s mother is also consistent with reports provided by entities such as the International Committee of the Red Cross (ICRC) who reported in 2020 that in Ethiopia, the majority of persons registered with them as missing (64%) are women and children, with intercommunal clashes and migration as the largest drivers.[6] The oral evidence regarding concerns about the political circumstances at the time of [Ms B]’s disappearance is consistent with the DFAT Country Information Report, which noted political sensitivities across the Oromo State between 2014 and 2018. [7]
[6] Africa: 44,000 people registered as missing on the continent, nearly half of them children - World | ReliefWeb accessed 1/8/2023
[7] Page 22, DFAT Country Information Report Ethiopia 12/8/2020
As noted, the definition of orphan relative 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. The Tribunal is satisfied and has found that the visa applicant’s father died in 2013. The evidence presented in support of the visa application is that his mother has been missing since October 2015 and her whereabouts is unknown. This is a question of fact.
In this case, the available evidence of the circumstances are as follows:
a)Family members were aware that [Ms B] was distressed by the death of her eldest son and husband and also by her other son’s disappearance.
b)At the time, [Ms B] was caring for the visa applicant and his two adopted siblings.
c)[Ms B] stated that she was going somewhere but did not provide any detail of where she was going.
d)[Ms B] was last seen on 13 October 2015. Since that date she has not contacted members of her family and family members have not been able to contact her.
e)Her disappearance is described as out of character. Prior to her disappearance she was in regular telephone contact with the review applicant and her cousin, [Mr A].
f)The family have obtained a Declaration of Absence issued by the [specified] Court dated [in] April 2017.
g)Since the disappearance of [Ms B] in October 2015, the visa applicant has been cared for by a cousin and with financial assistance from the review applicant.

The Tribunal assessed the oral evidence presented at hearing regarding the circumstances in which the visa applicant’s mother went missing as credible. The evidence was consistent with documents provided in support of the visa application. The Tribunal finds that the review applicant’s mother, [Ms B], has not contacted her family and her family members have been unable to contact her since October 2015, and that since that date her whereabouts is unknown.
The Tribunal is satisfied and finds that [Ms B] has been missing since October 2015. The Tribunal is satisfied that the visa applicant’s father died in 2013 and that as from October 2015, his mother was missing. The Tribunal is satisfied that as a consequence, at the time of application and at the time of decision, the visa applicant cannot be cared for by either parent.
Reg 1.14(b) was met at the time of application and continues to be met at the time of decision.
Best interests – reg 1.14(c)
Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant.
The Tribunal is satisfied and finds that after his mother went missing, the visa applicant was living with the support of a cousin who has since left the area. According to the evidence provided at hearing and to the Department:
a)   The visa applicant’s adopted siblings have also departed and apart from his sister (the review applicant), the visa applicant does not have any other siblings or close family members to provide him with support.
b)   The visa applicant is currently living alone and continues to be supported by the review applicant. The visa applicant told the Tribunal that his circumstances are quite difficult as he is now living alone.
c)   The review applicant provided a written statement and evidence that given her brother’s age, she has concerns about his wellbeing, particularly given the ongoing political unrest in Ethiopia and the potential for her brother to be targeted by local officials and security forces on the pretext that they are supporters of the Oromo Liberation Army.
The Tribunal accepts that the review applicant has genuine concerns about her brother’s wellbeing. 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 applicant.
The Tribunal is satisfied that reg 1.14(c) was met at the time of application and continues to be met at the time of decision.
CONCLUSION
Given the findings above, cl 117.211 was met at the time of application. In addition, the Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, but only because the visa applicant has turned 18. It follows that cl 117.221 is met.
For these reasons, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the 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.
Maxina Martellotta
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.