2207208 (Migration)

[2024] AATA 542

2207208 (Migration) [2024] AATA 542 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Libby Anne Hogarth (MARN: 9364758)

CASE NUMBER:  2207208

MEMBER:Jason Pennell

DATE:13 February 2024

PLACE OF DECISION:  Melbourne

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 13 February 2024 at 9.40am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death certificates for parents – financial support for family – impacts of war in Ethiopia – communication with visa applicant – DNA testing – best interests of the visa applicant – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

EC v MIMIA [2004] FCA 978
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 May 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.

3. 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 and cl 117.221 of Schedule 2 to the Regulations.

4. The delegate refused to grant the visa because the visa applicant did not meet cl 117.211 and cl 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied that at the time of the application the applicant could not be cared for by either parent because each of them was either dead, permanently incapacitated or of unknown whereabouts.

5. The review applicant appeared before the Tribunal on 2 February 2024 to give evidence and present arguments. [Sister A] (sister) and [Person A] were also available to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

6. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant has complied with cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.

2. The evidence of the review applicant ([named]) was that he was born in Mekelle, Tigray, Ethiopia on [DOB 1].[1] He arrived in Australia [in] January 2011 and became an Australian citizen [in] June 2015.[2]

   [1]    [The review applicant] Birth Certificate [Number]; Dept File No: [number] Doc ID: 9952922.

   [2]    Certificate of Citizenship dated [in] June 2015; AAT File No 2207208 Doc ID: 11988686

3. [The review applicant’s] evidence was that his father and mother are now deceased. His father, [named], was born on [DOB][3] and passed away in [Town 1] hospital [in] March 2006.[4] His mother, [Mother A], was born in [Town 1], [district name], Tigray, Ethiopia on [DOB][5] and passed away in [Town 1] hospital [in] January 2020.[6]

   [3]    [DOB] according to the Ethiopian calendar; [the review applicant] statutory declaration dated 2 May 2017 (‘the [review applicant] Declaration’); Dept File No: [number] Doc ID: 9952923 Application for Sponsorship for a Child dated 18 May 2017 (‘the Application’); Dept File No: [number] Doc ID: 9952922.

   [4]    The National Regional State, [Court 1] Decision dated [in] March 2017: AAT File No 2207208 Doc ID 11988686

   [5]    [Mother A] Death Certificate Dept File No: [number] Doc ID: 9952922.

   [6]    ibid

4. His evidence was that he has a total of [number] siblings, [genders specified] who continue to live in Ethiopia. In addition, he has one half-brother being the visa applicant ([the visa applicant]).

5. [The visa applicant] was born on [DOB][7] in [Town 1], Tigray, Ethiopia because of his father having a relationship with [the visa applicant’s] mother, [Ms A]. [The visa applicant’s] mother was born in [Town 1] on [DOB] and passed away [in] July 2008.[8] [The review applicant] obtained a copy of [Ms A's] death certificate from his brother-in-law, [named], who had obtained a copy for the [Town 1] Hospital.[9]

   [7]    [Different date of birth] according to the Ethiopian calendar; ibid; [the visa applicant] Birth Certificate [number]; Dept File No: [number] Doc ID: 9952922.

   [8]    [Ms A] Death certificate authenticated 8 December 2016; Dept File No: [number] Doc ID: 9952922

   [9]    ibid; [the review applicant] Declaration dated 2 May 2017; Dept File No: [number] Doc ID: 9952923

6. [The review applicant’s] evidence was that [the visa applicant] attended [a named] School in [Town 1] until [grade] which he completed in 2012. He then left school to play [sport 1] on a full-time basis. He competed for several underage teams within the local area. [The review applicant’s] evidence was that upon the outbreak of the war [the visa applicant] went into hiding out of fear of being recruited as a solider for the Tigrayan forces. His evidence was that [the visa applicant] continues to move around the country avoiding being drafted into the Tigrayan forces. After his mother died, [the visa applicant] had no other family and as a result went to live with [the review applicant’s] mother in [Town 1]. [The review applicant’s] evidence was that initially he had little to do with [the visa applicant] as he was living in Addis Ababa but claims since being in Australia, he has spoken to him regularly on the telephone.

7. [The review applicant’s] evidence was that he started financially supporting his mother and [the visa applicant] after he graduated in [year] in Addis Ababa and has continued to financially support his family since his arrival in Australia. He provided the Tribunal with bank statements evidencing payments made to Ethiopia in support of his family. [The review applicant’s] evidence was that during the war between the Tigrayan Army and the government forces, all communications were blocked including internet. As a result, he was forced to transfer money to an agent in Addis Ababa who for a large commission, would then deliver the cash to his family. Based on [the review applicant’s] evidence and the documentation provided to the Tribunal, it accepts that he provided financial support to [the visa applicant] and his mother as claimed.

8. [The review applicant] claimed that he sought full custody of [the visa applicant] in 2016 because of the death of his mother and because he was already financially supporting him. On [a day in] July 2016 the [Court 1] of the National State of Tigray made an order granting custody of [the visa applicant] to [the review applicant] (‘the custody order’).[10] A copy of the custody order together with the reasons for the court’s decision were provided to the Tribunal. The Tribunal notes that in the reasons for decision referred to the court accepts and finds that [the visa applicant’s] parents are deceased and that he does not have anyone else to look after him. In addition, the court states that [the visa applicant’s] relatives and family friends have indicated to it that [the review applicant] is the appropriate person to care for him.[11]

   [10] The National Regional State, [Court 1] Decision dated [in] March 2017: AAT File No 2207208 Doc ID 11988686

   [11] ibid

9. [The review applicant’s] evidence was that [the visa applicant] has never married and is not currently in a relationship.

10. [The review applicant’s] evidence was that he continues to speak to [the visa applicant] on a regular basis. However, given the unstable security situation in Ethiopia, he is particularly concerned for [the visa applicant’s] safety. He claims that [the visa applicant], as a young single male, is particularly vulnerable if he remains in Ethiopia. He claims that the continued unstable political and security position in Ethiopia, and in the Tigrayan area, means that [the visa applicant] is vulnerable to being harmed or alternatively being forced to join the Tigrayan Army. [The review applicant’s] evidence was that it is his intention that [the visa applicant] stay with him and his family for the purposes of recommencing his studies and continuing his [sport 1] career. The delay in finalising this application for an Orphan Relative visa continues to cause considerable stress and anxiety for [the visa applicant] and the family.

Is the visa applicant an orphan relative of an Australian relative?

1. 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.[12]

   [12] cl 117.221 Migration Regulations 1994, Schedule 2

2. ‘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.[13] 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).[14] In the present case, [the review applicant], is the relevant Australian relative.

   [13] cl 117.111 Migration Regulations 1994, Schedule 2

   [14] reg 1.03 Migration Regulations 1994

3. In this case, [the visa applicant] was born on [DOB], making him [age] years of age at the time of the visa application. A copy of his original birth certificate[15] (together with an English translation)[16] was provided to the Tribunal. The country information[17] reports that Ethiopian law requires the registration of all children within 90 days of birth. However, in practice, it’s reported that only a small percentage of births are registered, and children issued birth certificates. While registration is most frequent in Addis Ababa, non-registration is particularly acute in more rural areas where most births occur outside health facilities.[18] Registration of children who are born in hospital requires the payment of a fee, which can be a deterrent to poor families. The absence of a birth certificate can complicate access to other forms of legal documentation where a birth certificate is required as a form of evidence.[19]

   [15] [The visa applicant] Birth Certificate [number]; Dept File No: [number] Doc ID: 9952922

   [16] ibid

   [17] DFAT Country Information Report Ethiopia dated 12 August 2020 at p.48-49

   [18] ibid

   [19] ibid

4. The country information reports[20] that to obtain a birth certificate an applicant under the age of 18 must provide a national identification card for both parents, two passport photographs and a notation of birth either from a hospital or from the kebele office.[21] [The visa applicant’s] birth certificate was provided to the Tribunal which indicated [Ms A] was his mother. In addition, copies of the death certificates for both [the visa applicant’s] mother ([Ms A]) and father ([named]) were provided to the Tribunal. The death certificates provided indicated that both [the visa applicant’s] mother and father had died at the time of the visa application being made. As such, the Tribunal accepts and finds that [the visa applicant] was an orphan at the time of the application.

   [20] ibid

   [21] the local administrative office.

5. In addition, based on the review applicant’s evidence and the documentary evidence provided to the Tribunal, it accepts [the visa applicant] was [age] years of age at the time the visa application was made, as claimed.

6. Accordingly, the Tribunal finds that [the visa applicant] was an orphan relative of an Australian relative at the time of application. Furthermore, that [name] as 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) has been met, and continues to be met at the time of decision.

Age – reg 1.14(a)(i)

1. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. Based on the documentation provided by [the review applicant] as the review applicant, including [the visa applicant’s] birth certificate and the custody order, the Tribunal accepts that [the visa applicant] was [age] years of age at the time of the visa application on 18 May 2017. Accordingly, reg 1.14(a)(i) was met at the time of application but does not continue to be met at the time of decision only because [the visa applicant] is over the age of 18.

Spouse or de facto partner – reg 1.14(a)(ii)

1. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The evidence of [the review applicant], as the review applicant, was that [the visa applicant] has never been married and is not in a relationship. Based on the evidence provided to the Tribunal, it accepts and finds that [the visa applicant] has not been married and is not in a relationship. Accordingly, 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)

1. 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.

2. [The review applicant] is an Australian citizen, having been granted Australian citizenship [in] June 2015.[22] His evidence was that [the visa applicant] is his half-brother and that he was born on [DOB][23] in [Town 1], Tigray, Ethiopia because of his father having a relationship with [the visa applicant’s] mother, [Ms A]. DNA testing confirmed that [the review applicant] and [the visa applicant] (being the sponsor and applicant respectively) are ‘6008.42 times more likely to be siblings than half siblings.’ According to the report the likelihood ratio identifying the strength of relationship is the strongest scale ‘1001+’.[24] However, it’s reported that DNA testing does not provide conclusive results.[25] While mathematically it is expected that full siblings will share 50% of their genetic markers and half siblings will have 25% of their genes in common, it is not possible to determine with 100% accuracy whether two people are siblings.[26] In response to the review applicant’s representative seeking clarification of the DNA test results the DNA laboratory advised that ‘while the results indicate they are more likely to be full siblings, there is still very strong evidence that they are half siblings, so there is still a possibility that they may only share 1 common biological parent.’[27] It advised that the strength of the likelihood that the testing would indicate that they are full siblings will vary depending on matters such as if the mothers were closely related or genetically similar due to being from a small community with low genetic diversity.[28] Further, they may have inherited some rare alleles from their shared parent.[29] In this case both mothers are of a similar age from a small town in the Tigray region of Ethiopia. While there was no direct evidence as to the genetic diversity of the area, the Tribunal is prepared to accept that chances of a low genetic diversity in such a community would be relatively high. Therefore, in circumstances where there is a possibility of doubt about the accuracy of the DNA test and in circumstances where documentary evidence indicates [the visa applicant] and [the review applicant] had the same father but different mothers, the Tribunal accepts and finds that they half siblings as claimed.

   [22] Certificate of Citizenship dated [in] June 2015; AAT File No 2207208 Doc ID: 11988686

   [23] [Different date of birth] according to the Ethiopian calendar; ibid; [the visa applicant] Birth Certificate [number]; Dept File No: [number] Doc ID: 9952922.

   [24] Decision Record dated 8 March 2022 AAT File No 2207208 Doc ID: 9778046

   [25] Sibling DNA Testing relationship, DNA Testing for Families, DNA Labs; AAT File No 2207208 Doc ID: 11988686

   [26] ibid

   [27] Email by easyDNA dated 28 November 2023 AAT File No 2207208 Doc ID: 11988686

   [28] Decision Record dated 8 March 2022 AAT File No 2207208 Doc ID: 9778046

   [29] Email by easyDNA dated 13 December 2023 AAT File No 2207208 Doc ID: 11988686

3. Accordingly, based on the evidence presented to the Tribunal, it accepts that [the visa applicant] is a relative of [the review applicant] within the meaning of reg 1.03 at the time of application and at the time of the decision. Accordingly, the Tribunal finds 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)

1. 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.[30]

   [30] Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

2. In this case it is claimed that both of [the visa applicant’s] parents have died. Based on the documents provided to the Tribunal it has found that [the visa applicant’s] mother was [Ms A] as claimed. As such the Tribunal has accepted and found that [the visa applicant] and [the review applicant] are half-brothers. [The review applicant’s] evidence was that his and [the visa applicant’s] father passed away [in] March 2006[31] and [the visa applicant’s] mother passed away [in] July 2008.[32] Copies of their death certificates (with their English translations) were provided to the Tribunal.

   [31] The National Regional State, [Court 1] Decision dated [in] March 2017: AAT File No 2207208 Doc ID 11988686

   [32] [Ms A] Death certificate authenticated 8 December 2016; Dept File No: [number] Doc ID: 9952922

3. Therefore, based on the review applicant’s evidence to the Tribunal and the documentary evidence provided, the Tribunal accepts that [the visa applicant’s] parents have died. Accordingly, 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)

1. Regulation 1.14(c) requires that there is no compelling reason to believe that the granting of a visa would not be in the best interests of the visa applicant.

2. In this case, [the review applicant] claims that he fears for the safety of [the visa applicant] in Ethiopia due to the security situation in the country. As a young male ethnic Tigrayan in Ethiopia, the review applicant claims that [the visa applicant] is at risk of being seriously harmed if he remains in Ethiopia.

3. The country information[33] reports that because of increased tensions and hostilities between the Tigray People’s Liberation Front (TPLF) and the governments of Ethiopia and Eritrea, in November 2020 the TPLF forces attacked the Northern Command headquarters, and other bases, of the Ethiopian National Defence Force (ENDF).[34] As a result, the ENDF attacked the TPLF from the south while the Eritrean Defence Forces (EDF) launched an attack from the north.[35]

   [33] TPLF is a nationalist paramilitary group founded on 18 February 1975 in Dedebit, Tigray having defeated the Derg in 1991. From 1988 to 2018, it led a political coalition, the Ethiopian People's Revolutionary Democratic Front (EPRDF).

   [34] Vox, ‘Dying by blood or by hunger’: the war in Ethiopia’s Tigray region explained’ by Jean Kirby 24 April 2021; Reuters ‘The conflict in Ethiopia’ by Aditi Bhandari and Davis Lewis 18 December 2020. ww.reuters.com/graphics/ETHIOPIA-CONFLICT/xklpyjmndvg/

1. Initially, in November 2020, the federal allied forces captured Mekelle, the capital of the Tigray Region. However, by June 2021 the TPLF had retaken Mekelle and advanced into the Amhara and Oromo regions of Ethiopia.[36] After a successful government counter-offensive in response, and then a series of negotiations with the TPLF, Ethiopia declared an indefinite humanitarian truce on 24 March 2022, to allow the delivery of humanitarian aid into Tigray.[37] However, peace talks broke down and fighting commenced with hundreds of thousands of troops being mobilised by each group in August 2022.[38]

   [36] CNN, ‘Ethiopia’s government announce ceasefire as Tigran troops retake capital’ by Bethlehem Feleke, Richard Roth, Kristina Sgueglia, Vasco Cotovio, Nima Elbagir, 29 June 2021;

   [37] Aljazeera ‘Ethiopia declares unilateral truce to allow aid to Tigray’ by Abiy Ahmed, 24 March 2022; ww.aljazeera.com/news/2022/3/24/ethiopia-declares-truce-to-allow-aid-into-tigray

   [38] The Guardian ‘Fighting in northern Ethiopia shatters month long truce’ dated 25 August 2022; >

   It’s reported[39] that during the conflict Tigrayan residents were forced to take dangerous smuggling routes to escape forced military service under one side and the starvation and repression imposed by the other. TPLF authorities forcibly recruit already starved residents into the armed forces. It’s reported that thousands of people were forcibly recruited to fight in Tigray, with men, women and children being kidnapped and sent to the front lines.[40]

   [39] The Guardian ‘Its death either way: desperate Tigrayan’s flee starvation and forced conscription’ by Lucy Kassa 20 June 2022 Agenzia Fides. ‘Forced recruitment of soldiers for the conflict in Tigray is rampant’ 21 June 2022 >

   In November 2022 Ethiopia and the Tigrayan rebel forces agreed to a cessation of hostilities. However, Eritrea was not a party to the agreement, and as a result they continue to occupy parts of Tigray.[41] The Eritrean forces committed widespread abuses against civilians during its involvement in the war.[42] Human Rights Watch[43] reports that local authorities and Amhara forces in the northern Tigray region have continued to forcibly expel Tigrayans as part of an ethnic cleansing campaign since the truce agreement in November 2022. Militias in Western Tigray have continued to threaten and harass Tigrayan civilians.

   [41] The Guardian, ‘People are under siege’: why Ethiopia’s war in Tigray isn’t over’ 7 August 2023 Wilson Centre ‘Ethiopia’s Tigray War and its devastating Impact on Tigrayan Childrens Education.’18 April 2023; Human Rights Watch, ‘Ethiopia: Ethnic Cleansing Persists under Tigray Truce.’ 1 June 2023 >

   The country information[44] reports that the situation in Ethiopia, and in the Tigray region, remains dangerous and volatile with considerable inter-ethnic tensions. It is feared by opposition parties that the Abiy government has returned to an imperial-style domination of the country to maintain control.[45]

   [44] The Guardian, ‘As Ethiopia’s army declares daily victories, its people are being plunged into violence’, Alex de Waal, 24 November 2020, Ibid

2. The Tribunal has taken into consideration the fact that the opposition parties in Ethiopia represent the varying ethnic groups in the country. In the case of Tigray, Amhara and Eritrean forces remain. While a truce agreement exists, the actions of the government have the effect of persecuting the Tigrayan population in a systematic and discriminatory manner.

3. Therefore, based on the available country information and in circumstances where the applicant is a young single male, the Tribunal accepts and finds that it would be in the best interests of [the visa applicant] to travel to Australia for the purpose of living with [the review applicant], the review applicant. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

Has the applicant been adopted by the Australian relative?

1. 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 for applicants to meet this criterion.[46]

   [46] EC v MIMIA [2004] FCA 978

2. As the visa applicant satisfies cl 117.211(a) of the Regulations, it is not necessary to make any finding in relation to cl 117.211(b) of the Regulations.

3. Given the findings above, cl 117.211 is met.

4. 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.

5. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. 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.

Jason Pennell
Senior 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.