Ahmed (Migration)

[2022] AATA 2976

Ahmed (Migration) [2022] AATA 2976 (12 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Najat Umer Ahmed

VISA APPLICANTS:  Mr Robsan Ahmed Umer
Miss Dureit Ahmed Umer

CASE NUMBER:  1732742

HOME AFFAIRS REFERENCE(S):          2015075140, OSF2015/075140

MEMBER:Deputy President J.L Redfern PSM

DATE:12 September 2022

PLACE OF DECISION:  Sydney

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 12 September 2022 at 4:22pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) (Subclass 117) (Orphan Relative) visa – orphan relative of Australian citizen – aunt of the visa applicants living in Ethiopia – whether parents of visa applicants dead or of unknown whereabouts –– grandparent in poor health – evidence that the sponsor has been providing financial support to the visa applicants for a number of years – court document of legal guardianship in home country – examination of documents – credible witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14, 1.14(b); Schedule 2 cls 117.111, 117.211, 117.221

SECONDARY MATERIALS
Border and Immigration Agency, Home Office of United Kingdom, Country of Origin Information Report Ethiopia, 18 January 2008
Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 October 2017 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants, Mr Robsan Ahmed Umer and Ms Dureit Ahmed Umer, applied for the visas on 21 May 2015. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, the visa applicants claim that they meet the criteria for a Subclass 117 visa because their parents are either dead, permanently incapacitated or their whereabouts is unknown. The review applicant, Mrs Najat Umer Ahmed, is claimed to be the aunt of their dead or missing father, and she is their sponsor for the visa. The visa applicants are citizens of Ethiopia and live with the review applicant’s mother and their grandmother, Nesifa Ahmed Hassen, in Ethiopia. 

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). Relevant to this case, a key requirement for the visa is that the applicant must be the orphan relative of an Australian citizen or permanent resident or an eligible New Zealand citizen.

4. The delegate refused to grant the visas because he was not satisfied the visa applicants’ parents were either dead, permanently incapacitated or of unknown whereabouts. In other words, the delegate was not satisfied that either of the visa applicants were orphans. While the delegate made two separate decisions in respect of each visa applicant, the decisions were in the same terms and the delegate made similar findings. The claims made and the evidence and submissions relied on are identical. The visa applicants are alleged to be siblings and their evidence is relevant to each other’s claims. I therefore determined to hear the applications together and have dealt with both applications in combined written reasons. 

5. The review applicant appeared before me on 29 April 2021 to give evidence and present arguments. The hearing was by video, but this was not entirely satisfactory, so I adjourned the proceedings to arrange for a further hearing in person. I also gave the review applicant the opportunity to provide further evidence in support of her claims.

6. The hearing was rescheduled on a number of occasions but could not proceed, primarily because of restrictions relating to the COVID-19 pandemic. The review applicant travelled overseas to visit the visa applicants and her mother in Ethiopia in 2022 and the adjourned hearing was scheduled on her return for an in-person hearing on 7 July 2022. She gave oral evidence at both hearings and her sister, Kerima Omar Mohamed, gave oral evidence at the second hearing. The visa applicants gave evidence by telephone. Both hearings were conducted with the assistance of an interpreter in the Oromo and English languages. The review applicant was self-represented. Further information was provided by the review applicant after the hearing.

7. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   STATUTORY FRAMEWORK

8. Clause 117.211 of the Regulations 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.

9. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which provides as follows:

   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.

10. 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. She is an Australian citizen and there is no dispute that the visa applicants are her niece and nephew. As such, the visa applicants are the review applicant’s relatives for the purposes of cl.117.111. Passports and other identity documents were provided for the visa applicants and the delegate did not take issue with these matters in his decision. There does not appear to be any dispute that the visa applicants had not turned 18 at the time of the application. As such, the requirements in regulations 1.14(a) (i) and (iii) of the definition of ‘orphan relative’ are satisfied.

11. Having regard to the findings of the delegate, the critical issues in this case are whether the visa applicants were orphan relatives at the time of the application and whether they continue to be orphan relatives at the time of my decision. This issue is dependent on the question of whether I am satisfied that their parents are dead, permanently incapacitated or of unknown whereabouts. The claim made by the review applicant is that the visa applicants’ parents are missing and possibly dead, but she is unable to establish this definitively. At the very least it is claimed that the visa applicants’ parents are missing and have been missing since 2006. It is also contended that neither of the visa applicants have a spouse or de facto partner and that there is no compelling reason to believe the grant of the visa would not be in their best interests.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Outline of evidence

12. At the time of lodging the application for the visa, the review applicant provided documentary evidence of her Australian citizenship, documents evidencing the transfer of money from her to her mother in Ethiopia over the period October 2011 to March 2015, an English translation of an identity card for the review applicant’s mother and a document purporting to be a Court document from the East Hararge Zone Habro Court translated into English and dated 27 May 2014.

13. This Court document, which was poorly translated, purported to be a decision from the East Harerge Zone Habro Court to the effect that the review applicant had applied to be the guardian for the visa applicants. It is recorded in the translated version of the Court decision that the visa applicants’ biological parents, Ahmed Umer and Fetiya Ahmed, had disappeared or had abandoned the children and their whereabouts was unknown. Their grandmother, Nesifa (also spelled Nefissa) Ahmed, had been looking after them for eight years. It is noted that Robsan Ahmed Umer was born in May 1998 and was therefore 16 years old and Dureit Ahmed Umer was born in July 1999 and was therefore 15 years old. It was further recorded that the grandmother was unable to look after the children because of her age and that the review applicant should therefore be appointed as guardian.

14. The Department was also provided with a letter, translated into English, dated 30 April 2014, purporting to be from the Chairman of the Gelemso Kebele Administration. Gelemso (also spelled Galamso) is a town in West Hararghe (also spelled Harerge) Zone of Oromia state in Ethiopia. According to the letter, the visa applicants were eight years old at that time (and this had been ‘checked’ by the office) and Nesifa Ahmed had been raising the children with financial support provided by the review applicant.

15. The review applicant provided a statutory declaration to the Department setting out her claims. She stated that she was the aunt of the visa applicants and that the father of the visa applicants was her biological brother. She left Ethiopian fleeing political persecution and arrived in Australia in 2005. According to the review applicant, her brother had long been involved in politics. He and his wife went missing, after being taken by government forces, leaving their two children, the visa applicants, without parents. The visa applicants fell under the guardianship of her mother but after she became ill, it was decided the review applicant should provide support to the children. The review applicant further stated that the different geographical location between her and the visa applicants was a great burden. The children needed nurturing, guidance and discipline. The review applicant stated that she wanted the visa applicants to come and live with her in Australia. She provided passports and other identity documents for the visa applicants.

16. The delegate set out his concerns in his decision record dated 16 October 2017. He noted what he considered to be inconsistencies in the information provided by the review applicant. The delegate was not satisfied about the claims made by the review applicant, referring to inconsistent statements given to the Department about the disappearance of the visa applicants’ father. It is apparent from the decision the delegate was referring to statements given to the Department by a number of sources, namely, Kerima Omar Mohamed, the review applicant’s brother, Chala Omar, and the review applicant. The review applicant migrated to Australia with her sister, Kerima Omar Mohamed in 2005 as a dependent. According to the delegate, Kerima had stated in her application for a humanitarian visa that her father and elder brother had been killed in detention and that she found out about this on her return from Egypt in 1998. The delegate also noted that in 2011 the Department received an application for protection from Chala Omar, who claimed to be the brother of Kerima Mohamed, Ahmed Omer, and the review applicant. The delegate noted that Chala Omar stated in his application that his father disappeared when he was still a young child and his mother informed him his older brother Ahmed and his father had disappeared in 1995 after the government had arrested them.

17. The inconsistent statements identified by the delegate are listed in the decision as statements declaring that Ahmed Omar (also spelled Omer) disappeared in 1995 or 1996, that he died in detention by the time Kerima Mohamed returned to Ethiopia in 1998 and that he went missing in 2005 or 2006. Because of these discrepancies, the delegate was not satisfied about the claim made by the review applicant that the visa applicants’ parents were missing and they were orphans.

18. The review applicant provided the following documents to the Tribunal:

    (1)Translated birth certificate for Robsan Ahmed stating that his father’s name was Ahmed Umer Muhamed, noting that he was born in June 1998 and that he was an Ethiopian citizen;

    (2)Translated birth certificate for Dureit Umer Ahmed, stating her father’s name is Ahmed Umer Muhamed, noting that she was born in July 1999 and that she was an Ethiopian citizen;

    (3)Documents purporting to be identity documents for the visa applicants confirming their dates of birth as set out in the birth certificates;

    (4)Records of money transfers from the review applicant to her mother during 2019;

    (5)Telephone call activity statements alleged to be between the review applicant and the visa applicants and between the review applicant and her mother over the period from 2019 to March 2021;

    (6)Medical certificate dated 22 August 2006 in respect of Nesifa Ahmed Hassen recording that she is 84 years old and that she has kidney disease and was admitted for treatment;

    (7)The identity card for Nesifa Ahmed Hassen; and

    (8)Photographs of the review applicant and the visa applicants together with other members of the family.

19. The review applicant also provided a further statement, received by the Tribunal on 24 April 2021, responding to issues raised by the delegate in the decision. She stated that her father had died and, while her brother was wounded, it was her understanding that he had escaped. The review applicant believed that her brother feared for his life and so decided to move away and have a family of his own. He married and had two children, being the visa applicants. She and her sister migrated to Australia in 2005 but reconnected with their family in July 2006, after many years, and heard what happened to the rest of the family.

20. According to the review applicant, Ahmed Omar later decided to join the Oromo Liberation Front and after protesting, he and his wife were taken by security forces from their home late at night. They were never found, making the date of their disappearance as early as 2006.

21. In addition to the evidence about the disappearance of her brother and sister-in-law, the review applicant made extensive submissions about why she considered to be in the best interests of the visa applicants to come to Australia under an orphan relative visa. She provided a further English translation of the Court decision. The first translation was poor and incorrectly referred to East rather than West Harerge or Hararge Zone, which was obviously a translation error. This second translation was similar in effect to the first translation but also of poor quality.

22. The review applicant gave oral evidence at the hearings. This evidence was broadly consistent with the various written statements she had previously provided to the Department and the Tribunal. Her oral evidence was to the following effect.

23. The review applicant has two sisters, one older and one younger, two younger brothers who are alive, one brother who died in 1998 and her missing brother, Ahmed Omar, being the father of the visa applicants. The review applicant is the fourth oldest sibling in the family. Her sister Kerima is the oldest, Mustafa Omar, who is deceased, was the second born, Ahmed Omar is the third born, her brother, Abdo Omar, who was a year older than her, is the fifth born, her younger brother, Chala Omar, is the sixth born and her younger sister, Ikram Omar Mohammed, is the seventh and youngest child. The family dispersed during the conflict in Ethiopian and the only member of the review applicant’s immediate family still residing in Ethiopia is her mother. Abdo lives in Kenya, Ikram lives in Sweden and Chala lives in Australia. He was granted a Global Special Humanitarian visa on 14 September 2014. Her father is believed to be dead and her mother, Nefisa Ahmed, still lives in Ethiopia with the visa applicants. There are other members of the extended family still living in Ethiopian, being her aunt and uncle, their children and her sister-in-law.

24. The review applicant said that she telephoned her mother and the visa applicants regularly. She also said that she provided money to assist her mother and the visa applicants, and she had returned to Ethiopian in 2019 and 2022 to visit her mother and the visa applicants. She provided copies of the photographs and explained who was in those photographs. The people in the photographs included her mother, the visa applicants, her sister-in-law, her sister-in-law’s children, the review applicant’s children, her husband and some family friends who she identified by name.

25. The review applicant said that she left Ethiopia in 2001 and lived in Cairo. She was 16 years old when she left Ethiopia. She came to Australia in 2005 with her sister on a Refugee and Humanitarian visa. She said, consistent with the information provided in her statutory declaration, that her father and her brother Ahmed were imprisoned but her brother escaped. She does not know for certain, but she believed that her father was killed during his time in detention. Her father and brother were members of the Oromo Liberation Front. The review applicant said she did not see her brother after he escaped from prison because she was in Cairo at this time. She knew that he had continued to be involved in politics and that he had campaigned at the 2005 National Ethiopian elections. It was not until she and Kerima were in Australia that they found out about Ahmed’s disappearance. The review applicant said that her mother told her Ahmed and his wife had been taken by authorities and that she had collected the children from their home. According to the review applicant, the visa applicants had lived with her mother since this time. There were no reports made about the visa applicant’s parents but they were presumed to be missing or possibly killed. She had tried to find out where they were, as had her mother and their other relatives in Ethiopia, but they could not be located. She said that she had heard they had been taken to different places and she believed they may have been killed but was not sure. The review applicant said that her brother, Mustafa, had joined the army and she believes he was killed while in the Army before she left for Cairo.

26. The review applicant said that she decided to apply to be the guardian for the visa applicants because she was concerned her mother was getting old and would not be able to look after the children. She did not believe her aunt and uncle would want to or be able to look after them.

27. There were a number of discrepancies in the documents she provided about her application for guardianship. I therefore requested that a further English translation of the Court documents be provided by a NAATI accredited translator.

28. After the first hearing, the review applicant provided a further English translation of the Court document by a NAATI accredited translator. The document is headed ‘decision’ and is dated 19 September 2006, which is recorded to be the date according to the Ethiopian calendar. The Court listed is the West Hararghe Zone, Habro Magistrates Court, Court seals have apparently been applied to the decision, being the Court seals for the West Hararghe Magistrates Court and the West Hararghe High Court. The decision notes that the review applicant made the application on 23 August 2006, also a reference to the Ethiopian calendar. The decision refers to the visa applicants by name, refers to their father and mother by name and notes that the children’s grandmother, Nafisa (rather than Nefisa) Ahmed, stated she had been the children’s carer for the past eight years since the children’s parents went missing. It is noted in the decision that the parents of the children disappeared in ‘2006’. While this seems to be inconsistent with the rest of the translated document (which mostly refers to the Ethiopian calendar), it is apparent from reviewing the original that the date in the document is 1998, being some seven or eight years earlier than the date in the translated Court document. The difficulty with the translation, rather than the Court document itself, is that the translation occasionally refers to a date by reference to the Ethiopian and the Gregorian calendar interchangeably. It is important to note that the Ethiopian calendar is over seven years behind the Gregorian calendar, and it is likely that this has caused confusion, possibly casting doubt on the credibility of this evidence and how the applicants’ claims have been assessed.

1. Having reviewed the NAATI translated Court decision and the copy of the original Court decision, I accept that the inconsistencies in the dates can be explained by differences in the translation rather than in the document itself. This is apparent from a cursory review of each of the documents. For instance, the original document refers to all dates by reference to the Ethiopian calendar. However, the translation alternates between the two dates, sometimes referring to both dates. The NAATI translation refers to date of the decision and the date of the applicant’s written application by reference to the Ethiopian calendar but the date for the disappearance for the parents is made by reference to the Gregorian calendar. The dates of birth for the visa applicants are in both the Ethiopian and Gregorian calendars. Nothing turns on the slightly different spelling of the name of the review applicant’s mother or the review applicant’s brother, notably this different spelling appears throughout a number of documents. I do not consider this to be material and note that there appears to be minor differences or preferences in the English translations effecting certain letters, which have been used interchangeably.[1] In summary, the NAATI translation of the Court decision refers to various legal provisions, is clearly constructed and, on its face, the Court decision as translated presents as an authentic document.

   [1] For instance, ‘Nafisa’ and ‘Nefisa’, ‘Harerge’ and ‘Hararghe’, ‘Gelesmo’ and ‘Galasmo’, ‘Omar’, ‘Omer’ and ‘Umer’.

2. There is nothing on the face of the Court document which suggests that it is fraudulent or contrived, however the use of the different dates, as between the Ethiopian and Gregorian calendar, causes confusion. These differences also appear to have caused confusion when the delegate assessed the various statements made about when the visa applicants’ parents are said to have disappeared. In this regard, the dates nominated have been as early as 1995/1996 and as late as 2005/2006. Given the passage of time, I would not be critical about witnesses who are not able to accurately recount dates. For instance, recounting a date that is one or two years out when a significant period has passed is not an inconsistency that necessarily points to fabrication of claims. I accept that a difference of about ten or eight years legitimately raises concerns about the credibility of claims made but an important factor to take into account in this case is the over seven-year gap between the Ethiopian and Gregorian calendars, which have been used interchangeably. As such, references to the visa applicants’ parents going missing in 2005 and 2006 and in 1998 and possibly as early as 1995/1996 are not materially inconsistent when the confusion in relation to the Ethiopian and Gregorian calendars is taken into account. Having regard to the confusion in the dates, which can be explained, I am not concerned, as was the delegate, about the credibility of the claims made because of these inconsistencies.

3. The NAATI translation of the Court decision records that three witnesses provided evidence, being the visa applicants and Nafisa Ahmed. It is stated in the reasons that the judge was satisfied both parents of the children were missing and that their grandmother was the carer of the children, with support she was getting from the review applicant. It is also noted that the Court was satisfied the children were above ten years old and they were eligible to appear in Court, having expressed their interest that there are very keen to unite and live with the review applicant. It is recorded that the Court was satisfied the review applicant was the sister of the children’s father and that it was in the best interests of the children for the review applicant to look after the visa applicants.

4. Kerima Mohamed gave evidence at the second hearing. Her evidence was consistent with the evidence of the review applicant about the family circumstances, the initial detention of their father and brother, their father’s suspected death and the involvement of Ahmed Omar in the national elections in 2005. Kerima said that she established contact with their mother in 2006 when she and the review applicant were in Australia. Her mother had told her that Ahmed had married and gone to the countryside with his wife but was subsequently imprisoned. Her mother also said that she had looked after the visa applicants since the time the parents went missing in 2006. She believed that the visa applicants were about four or five years old at this time. Kerima said that she had returned to Ethiopia to visit her mother in about 2011, 2012/13 and 2017/18. The visa applicants had lived with her mother during the whole of this period. The family was unable to obtain any information about the whereabouts of their parents and, as far as she was aware, they were still missing. Nobody in the family had heard from them. The review applicant advised her that she was proposing to make a guardianship application for the children, which she supported.

5. At the second hearing, the review applicant confirmed her previous evidence and said that she had decided to become guardian for her niece and nephew because of concerns about her mother’s health and ability to look after them. She was also concerned about the position in Ethiopia and was concerned that her niece and nephew would be forced into conscription. She provided photographs from the Internet of young people being forced into conscription and being persecuted for refusing to join the military. The review applicant said she could provide copies of the documents that were lodged with the application, although it might take some time to find those documents.

6. Robsan Ahmed Umer gave evidence by telephone. He said he was born in June 1998 and he was 25 years old. He lived in Gelesmo and was living with his sister and grandmother. He had lived with his grandmother since he was young. He did not know where his parents were, and he does not remember the last time that he saw them or what happened to them. He said that he had not looked for his parents but had asked people about them. He said that nobody was able to tell where his parents were. He was not working and had little education. He said that he wanted to have the opportunity to study and work and believes that it would be beneficial for him to come to live with his aunt in Australia. He said that he did not have a spouse or a partner and was not in a relationship. He said that he spoke to his aunt regularly, at least four or five times a month. He recalled going to a court to give evidence to a judge but does not recall what was said. He said that the hearing took place in Gelesmo.

7. Dureit Ahmed Umer also gave evidence by telephone. She said she was 24 years old and her birthday was in July 1999. She was not in a relationship with anybody and did not have a spouse or partner. She said that she had been living with her grandmother and her brother for many years. She also said that she had last seen her parents when she was a child. She was very young and could not remember the circumstances of them leaving. She has been living with her grandmother and brother since this time. When she was asked whether she had tried to find her parents, she said that she had asked people where her parents were, but nobody seemed to know. She also said that she remembered going to court many years ago and that the court was located in Gelesmo. She said that she went with her brother and grandmother. Dureit said that she spoke to her aunt regularly, once a week or at least every fortnight. She did not work and had little education.

8. At my request, the review applicant provided a translated version of the application for guardianship. The application was dated 28 May 2006, which was evidently based on the Ethiopian calendar, and was lodged with the Habro Magistrates Court. The application was said to be based on sections 197 and 211 of the State of Oromia, Family Act and the content about the basis of the application was consistent with the Court decision previously provided. There was nothing on the face of the document that suggests it is fraudulent or contrived.

   Findings

9. A critical issue in this case is whether I am satisfied that the parents of the visa applicants are dead, permanently incapacitated or that their whereabouts is unknown. There is no claim that the visa applicants’ parents are permanently incapacitated. It is alleged they are missing, with their whereabouts unknown.

10. The difficulty in a case such as this, when a person is alleged to be missing and they have been missing for over 16 years, is that there are limited prospects of being able to verify this information. There are no official records about this, and the only available evidence is the evidence provided by witnesses about the circumstances leading to their disappearance and evidence of witnesses about the whereabouts of the person or persons alleged to be missing.

11. The evidence provided by the applicants are the evidence of the review applicant, the evidence of the review applicant’s sister and the evidence of the visa applicants. Their evidence was consistent and plausible. While Kerima said she believed the children were four or five when their parents went missing (they were actually seven and eight), I do not consider this to be a material inconsistency given the time that has elapsed and the fact that the review applicant is the one who has been primarily involved with the children. All witnesses presented as credible. Each gave evidence separately, yet consistently and spontaneously. The evidence about the detention and potential disappearance of the visa applicants’ parents is consistent with country information contained in the Country-of-Origin Information Report for Ethiopia dated 18 January 2008 published by the United Kingdom Home Office. According to the Home Office (citing the United States State Department report for 2006), national elections were held in Ethiopia in May 2005. It was noted that 36 political parties competed for the Federal Parliament or regional and city councils and that many of the registered political parties were affiliated with the ruling Ethiopian People’s Revolutionary Democratic Front coalition. It was further noted that there were irregularities and intimidation of voters and that observers reported killings, disappearances, voter intimidation and harassment and unlawful detentions of opposition party supporters.[2] It was also noted that, according to Amnesty International, Ethiopian authorities began arresting opposition members in mid-September 2005, with over 850 people being detained, mainly in the central Amhara and Oromia regions.[3]

    [2] Country of Origin Information Report Ethiopia, Border and Immigration Agency, Home Office of United Kingdom dated 18 January 2008 at [3.18] to [3.19].

    [3] Country of Origin Information Report Ethiopia, Border and Immigration Agency, Home Office of United Kingdom dated 18 January 2008 at [3.28].

12. There is no information about whether this government action continued into 2006, when it is alleged the visa applicants’ parents disappeared. However, it is plausible that they were subsequently targeted by the ruling government, particularly given that the Oromo Liberation Front was banned by the government from the 1990s.[4]

    [4] Ibid at [6.55] to [6.63].

13. The Court documents provided by the review applicant also support her claims that the whereabouts of the parents of the visa applicants are unknown. The Court documents are consistent with the review applicant’s claims that she lodged such an application in 2014 seeking guardianship, which was over a year before she lodged this visa application. Country information from the Department of Foreign Affairs and Trade (DFAT) dated 12 August 2020 about document fraud states that:

    Documents assessed as being at low-risk of fraud include police clearance certificates, adoption orders, bank statements and university documents.[5]

    [5] DFAT Reports at [5.65].

14. There is nothing on the face of the Court documents to suggest they are fraudulent or contrived and the English translations of the Court decision and application are broadly consistent. The documents provided by the review applicant refer to ‘guardianship’ rather than adoption, but I am accept that court approved guardianship orders are likely to be similar to adoption orders, suggesting that the assessment made by DFAT about adoption orders being a low risk of fraud would be similarly applicable to guardianship orders.

15. There does not appear to be any publicly available register recording the results of Court proceedings and to assist in making an assessment about the veracity of these Court documents, I obtained advice from the Country of Origin Information Services Section (COISS), Department of Home Affairs, about a number of the legal provisions and processes referred to in the Court documents provided. This information provided by COISS was general in nature and was sourced from published information about legal processes in Ethiopia involving guardianship and adoption. In summary, the provisions referred to in the Court documents appear to be consistent with proceedings involving guardianship or adoption. There is otherwise limited information available about the types of guardianship orders made and the procedures and timeframe for such applications.

16. In the absence of evidence suggesting the documents are fraudulent or contrived, I accept the review applicant’s evidence that she made such an application and obtained Court orders in respect of the visa applicants over eight years ago and approximately one year before this visa application was made. However, it is relevant to note that the fact that such an application was made, and the Court apparently made guardianship orders, does not of itself establish that the visa applicants’ parents are missing. This is simply one of the matters that I have taken into account in assessing whether I accept the evidence of the review applicant, her sister and the visa applicants.

17. Having regard to the totality of the evidence and information before me, I accept that the visa applicants satisfy the requirements for the visa. In summary, I accept that they are relatives of the review applicant. I accept that they were under 18 years old at the time of the application. While the visa applicants are no longer under 18 at the time of my decision, this is irrelevant because of the provisions of cl.117.221. There is no evidence before me to suggest that either are in a spousal relationship and I accept that they have lived with their grandmother for an extended period, based on their evidence, since they were young. I accept they have not seen their parents for many years and therefore accept that the whereabouts of their parents is unknown.

18. Having regard to the submissions of the review applicant and the evidence given by the visa applicants at the hearing, I also accept that there is no compelling reason to believe that that the grant of this visa would not be in their best interests. I accept that there are no close relatives living with them in Ethiopia, apart from their grandmother who is unwell and is 84 years old. While I accept that they may have extended family relatives through their great aunt and uncle, three of their relatives are in Australia, being the review applicant, Kerima and Chala. The others are in Kenya and Sweden. There is no information before me to suggest the visa applicants would be disadvantaged in leaving Ethiopia but rather there is evidence that they may be given better opportunities if they lived with their aunt in Australia.

    Conclusions

19. Based on the reasons set out above, I am satisfied that the visa applicants were under 18 years old at the time of the application and therefore meet the requirements of reg 1.14(a)(i). I am also satisfied that neither of the visa applicants have a spouse or de facto partner. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision. I am satisfied that both visa applicants are the relative of an Australian citizen, being the review applicant. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

20. 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. I am satisfied that the parents of the visa applicants are of unknown whereabouts. As such, I am satisfied that at the time of the application, when they were under 18 years old, the visa applicants could not be cared for by either parent. Unfortunately, given the delay in the processing of the application before the Department and the Tribunal, these visa applicants are now young adults, but this does not preclude the criteria from being met at the time of decision.

21. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision. Notably, there is no evidence that the visa applicants’ parents have since been located or that the whereabouts of their parents is now known.

22. 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. As already noted, I am satisfied that there is no such compelling reason, either at the time of the application or at the time of this decision. As such, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

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

    DECISION

24. 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.

    J.L Redfern PSM
    Deputy President