Adem (Migration)

Adem (Migration) [2023] AATA 1670 (31 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANTS:  Mrs Madiya Alo Adem

VISA APPLICANTS:
Miss Saliha Alo Adem


Mr Mohammed Alo Adem
Mr Jemal Alo Adem
Miss Samara Alo Adem

REPRESENTATIVE: Ms Kathleen Coffey
CASE NUMBER: 1901205

HOME AFFAIRS REFERENCE(S):          OSF2017/024024
  OSF2017/024025
  OSF2017/024026
  OSF2017/024027
MEMBER:Justin Meyer
DATE:31 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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 31 May 2023 at 3:04pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of parents – applicant’s father died in prison – money transfers – human rights violations in Ethiopia – Red Cross Tracing report – 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
Nguyen v MIMA (1998) 158 ALR 639
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 15 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 3 January 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 and 117.221.
The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117. 211of Schedule 2 to the Regulations because regulation 1.14(b) was not met. Therefore, it follows that he did not meet the requirements of regulation 117.211.
Under this definition there must be satisfaction that he cannot be cared for by either of his parents because each of them is either dead, permanently incapacitated or of unknown whereabouts. The applicant had not provided a death certificate for his father notwithstanding that it is possible to obtain such documents in Ethiopia. The fact that no death certificate has been provided led the delegate to conclude that his father is not deceased as claimed. Although the applicant’s mother is claimed to have been missing since 13 October 2012, no evidence has been submitted to show that an attempt has been made to trace her whereabouts. The onus rests with the applicant to present evidence in support of his or her claims in order to meet the requirements.
The review applicant (sponsor) appeared before the Tribunal on 17 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Abdulmalik Hassan Omar, Mohammed Alo Adem and Alewi Umar. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.
The four separate delegate refusals for the four visa applicants’ applications were dealt with in one hearing and the Tribunal combines its review of all delegate decisions as the same dispositive issue is present in both.
The review applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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 applicants are orphan relatives.
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 visa applicants’ sister, Mrs Madiya Alo Adem, is the relevant Australian relative (she was a permanent resident at the time of the visa application).
For the reasons explained below, the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision. There is consistent oral evidence that the visa applicants and their sponsor are siblings. 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. The applicants provide documentary evidence that they are presently aged 19, 22, 23 and 24. They were all under 18 at the time of application. The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18.
Spouse or de facto partner – r.1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Having questioned the applicants and examined all materials before me there is no evidence that this has occurred. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.
Relative – r.1.14(a)(iii)
Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in r.1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.
Having questioned the applicants and examined all materials before me there is no evidence that the review applicant (sponsor) is anyone else than the visa applicants’ sister, who is an Australian citizen. Accordingly, r.1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.
No parental care – 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.
The Tribunal has questioned, in detail, the review applicant (sponsor) and the visa applicants on the claimed death or disappearance of their parents. Throughout the hearing and in the written evidence the parties have consistently claimed that their father died 15 February 2012 while in in prison in Oromo and their mother disappeared on 13 October 2012.
The parties presented a supporting letter from Oromia Regional Government advising that their father, Mr. Ala Adorn Yeno died in prison on15 February 2012. They presented a second letter, also from Oromia Regional Government stating that their mother, Asha Hassan Fatu abandoned her children on 13 October 2012 and went missing. Both documents are dated 14 March 2016. The evidence from the Oromia Regional Government has been provided based on testaments given by witnesses or their guardian in the lead up to the application.
Their evidence was consistent with the written claims, and the witnesses corroborated each other in their accounts of the parents’ death/ disappearance.
The review applicant (sponsor) said that the family was made up of two brothers and four sisters. The sister Saliha (Miss Saliha Alo Adem) is missing.
The review applicant (sponsor) came to Australia in 13. She said all of her brothers and sisters were all brothers and sisters. They grew up in Agarfa ,Ethiopia. The parents only had one marriage which was to each other.
The review applicant (sponsor) said that she was second in the birth order. The balance were Saliha (b.1999), and then Mohammed (b.2000), Jemal (b.2001), and Samara (b.2003).
She remembered her siblings when growing up in the same house.
She remembers her father being taken, and this was when she was 19 and had already left home. She heard about this later in 2014. She was told this by neighbour by telephone. I asked the applicant if the neighbour had told her what had become of her father. She said her nephew back home and done an exhaustive check try to find out what had happened.
She called the lady ‘back home’ who told her what had occurred. I asked if she was told that her father had died in prison and this was confirmed.
The review applicant (sponsor) said that she had moved to Egypt for two reasons for her own preservation and because of fear. Her father was being persecuted. The husband was there at the time. Her father was active in Oromia and was a OLF supporter. This was the liberation front. He attended secret meetings and gave political support. The group would come to the meeting the family home.
He was tortured for his political beliefs. He died in prison in Addis Ababa.
The Tribunal examined a photograph of the family and asked where it was taken. The review applicant (sponsor) said that this was at their house. The whole family is not in the photo – it is one of her mother, herself and three siblings. There are other children in the photo who were cousins.
Her mother left the house and has never seen again. The family does not know what happened to her. I asked if her mother often went out of the house without telling people or whether it was out of character. The review applicant (sponsor) said that according to information that they later received after the death of her father, her mother was depressed. It looks as if she had mental health issues. The family checked the prisons and hospitals as well as mosques. They looked everywhere. They registered her as a missing person.
I asked if the review applicant (sponsor) continue to support her siblings. She said she sent the money and her husband helps. This money has been sent since 2014. Financial documents confirming this was submitted.
The review applicant’s (sponsor’s) husband Abdulmalik Hassan Omar also gave oral evidence. He said that the children depended on the couple financially. He said that his wife is worried about the family and it worried him as well. He said he needed to look after his wife and children and made regular money transfers. He also gave money to people visiting the area from Australia. This was normally by way of cash. Clothing was sent as well. The money was sent to Mohammed as he is the responsible one of the family members. But it is to be used for Mohammed and the other siblings.
I asked about how the family found out about the death of the father. The witness said it was from former neighbours. He said he knew the history of his father-in-law in the area. He said his own father and his father-in-law knew one another. His father-in-law was fighting for freedom. The problem in hearing about his father’s in-laws death was because of the poor communication in the area as it is under the control of the authorities. The family is anti-government. People use landlines but communications equipment locked. He can’t receive certain calls from some places. Communication was almost impossible. His wife managed to contact neighbours via his efforts.
I asked if there was a burial site for his father-in-law was. He said when people are arrested or died in prison for victims and political prisoners such information is barely passed on. People would be lucky to get a body bag that this did not occur in this case.
The family does not know cause of death but says that his father-in-law was arrested and tortured. He said that he also was injured and could not walk properly.
I asked the witness about his wife’s evidence of the disappearance of her mother. He said the mother was shocked at the disappearance of her husband.
The witness could also point out siblings and relatives from the photograph that was tendered.
In the written submission the review applicant (sponsor) noted that the parties’ evidence is that the father is deceased. It is also submitted in writing that there is no burial site that is known.
The Tribunal also took evidence by telephone from the visa applicant Mr Mohammed Alo Adem. The applicant said that his father died in prison. He had conducted political activities. He had not seen the body or grave. His mother had disappeared. This applicant named his siblings Jemal and Samara and he said that they all lived together.
He said that his sister helps them financially and money is transferred. She also arranges for money to be given by hand by people in the area. He said the situation had become worse for them when their sister Saliha disappeared.
Another visa applicant Mr Jemal Alo Adem gave evidence saying that Suliha was doing all she could to look after the siblings like the mother. All they now have to start from scratch again as Saliha is missing. They are lonely and there is great hardship
The review applicant’s (sponsor’s) brother-in-law Mr Alewi Umar gave evidence concerning the living arrangements of the siblings and that they are devastated by happened. He has been to see them he has been to see them for himself in Ethiopia - brother and sisters living in a house.
The review applicant’s (sponsor’s) written submission states:
The United States Department of State Report that human rights abuses are widespread and common practice in Ethiopia, signifying the situation in Ethiopia is dire. With respect, we submit that it is highly plausible that the visa applicant’s father died in the manner claimed:
Significant human rights issues included credible reports of: unlawful or arbitrary
killings, including extrajudicial killings by the government; forced disappearance
by the government; torture and cases of cruel, inhuman, or degrading treatment or
punishment by the government; harsh and life-threatening prison conditions;
arbitrary arrest and detention; political prisoners or detainees; serious abuses in
a conflict, including reportedly unlawful or widespread civilian harm, enforced
disappearances or abductions, torture and physical abuses or punishments;
The same report addresses the nature of prison and detention centres in Ethiopia, revealing awful and potentially life threatening conditions.
Prison and pretrial detention center conditions remained harsh and in some cases
life threatening. Problems included gross overcrowding and inadequate food,
water, sanitation, and medical care. Pretrial detention often occurred in police
station detention facilities, where conditions varied widely, and reports noted
poor hygiene.
The following article addresses the situation for Oromos in Ethiopia, and the origins of the conflict for Oromo people. It is evident that human rights violations by the Ethiopian government towards the Oromo community are frequent in Ethiopia and the cause of social, political, cultural and economic crisis in Oromo communities.
The Ethiopian state has continued to subject the Oromo people to violence and
human rights violations. Successive Ethiopian governments have caused deep
social, political, cultural and economic crises in Oromo society.
The situation in Ethiopia especially for the visa applicants’ community suggests it is highly plausible that the visa applicant’s father is deceased. With respect we submit given the documentary evidence provided coupled with the situation for the Oromo Community in Ethiopia and political dissidents, it is highly plausible that the visa applicants father is deceased, as claimed.
Department of Foreign Affairs and Trade Report, Ethiopia, 12 August 2020, page 48-49, paragraph 5.43, Section 1c, Page 6.
The Conversation, ‘Ethiopia’s other conflict: what’s driving the violence in Oromia?, 20 July 22, visa applicants and Madiya have provided further context to their mother’s disappearance in their statements. With respect, we submit that it is plausible that their mother struggled to cope after the death of their father, especially given she had a large family to support. Given the lack of support services for mental health in Ethiopia, it is conceivable she was unable to obtain adequate support and could not cope, which resulted in her going missing.
It is apparent from the evidence of the applicants, that their extended family took significant
steps to try and locate their mother. They have explained that their extended family
contacted local community and religious leaders, the local authorities and family and
friends to try and find her mother, however were unable to locate her. Given tensions
between the Oromo community and Ethiopian Authorities, they did not believe it was safe
to make further inquiries with the wider Authorities outside their home area in Ethiopia.
Madiya also contacted Red Cross Tracing, however they were unable to assist, without Madiya providing further information about her mother which she does not possess. With respect, we submit that it is evident that the visa applicants and sponsor have undertaken significant steps to attempt to locate their mother to no avail.
The Department of Home Affairs, Procedural Advice Manual states that where it is claimed that a parent’s whereabouts is unknown, they should be interviewed to ask about the efforts undertaken to locate the parent5. It further notes that officers should have regard to the time that has elapsed between the parent’s disappearance and the child’s visa application and arrangements for the child’s care during that time. The delegate did not interview the applicants, if he did it is likely a further understanding would have been obtained with respect to the steps taken by Madiya and the visa applicant to attempt to locate their mother. Nonetheless, we note that Madiya did explain same in her statement in support of the application.
Detailed documents were submitted as follows, offering corroboration:
·Statement of Review Applicant, Madiya Alo Adem
·Statement of Visa Applicant, Mohammad Ali Adem
·Statement of Visa Applicant, Jemal Alo Adem
·Statement of Visa Applicant, Samara Alo Adem
·Statement of Review Applicant’s Husband, Abdulmalik Hassan 1
·Family Photograph
·Death Certificate, Father Visa Applicant
·Red Cross Tracing Report
The Tribunal concludes that the visa applicants and the review applicant (sponsor) are all full siblings and that their father is deceased. Their mother I find has disappeared. There is no rational basis for concluding otherwise.
Given the probable difficulties in obtaining documentation for persons deceased in prison in Ethiopia for political offences, that which is supplied is what could be expected. I accept that tracing attempts were made for the mother.

There is no evidentiary basis to suggest that the claimed events did not occur.
Therefore, the Tribunal is not satisfied - on the evidence before it - that there is a good reason to question the death and disappearance of the parents of the visa applicants.
The Tribunal concludes that the visa applicants’ father died in February 2012 and the mother disappeared October 2012.
I find the visa applicants cannot be cared for by either parent because each of them is dead or of unknown whereabouts.
Accordingly, r.1.14(b) was met at the time of application and continues to be met at the time of decision.
Best interests – r.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 applicants. Given the accepted hardship in Ethiopia and care offered by the review applicant (sponsor) this would be in their best interests. Accordingly, r.1.14(c) was met at the time of application and continues to be met at the time of decision.
Given the findings above, cl.117.211 is met.
The Tribunal finds that the visa applicants continue to satisfy the criterion in cl.117.211 or for those who do not continue to satisfy the criterion in cl.117.211, this is only because the visa applicant has turned 18. It follows that cl.117.221 is met.
Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet 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.
Justin Meyer
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.

[2023] AATA 1670

31 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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