Ayele (Migration)

[2021] AATA 4452

Ayele (Migration) [2021] AATA 4452 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Alem Getachew Ayele

VISA APPLICANTS:  Miss Yetimworke Arega Mekuria
Master Menelik Arega Mekuria

CASE NUMBER:  1902601

DIBP REFERENCE(S):  2017023806 OSF2017023806

MEMBER:Denis Dragovic

DATE:1 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and second named visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl.117.21 of Schedule 2 to the Regulations; and

·cl.117.221 of Schedule 2 to the Regulations.

Statement made on 01 November 2021 at 10:59am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of the visa applicants’ father – visa applicants’ mother permanently incapacitated – limited medical evidence – Ethiopian court order – credibility concerns – DNA testing – best interests of the applicants – 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
Singh v MIMIA [2008] FMCA 587

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 23 November 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 visa was lodged on the basis of the claim that the applicants were orphan relatives of the sponsor who was their maternal aunt and that their father was deceased and mother is permanently incapacitated due to mental illness.

4. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.117.211 which requires that the applicant is an orphan relative of an Australian relative. Orphan relative is defined as someone who has not turned 18 and does not have a spouse or de facto partner and is a relative, the applicant cannot be cared for by either parent because they are either dead or permanently incapacitated and there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.

5. The delegate refused to grant the visas because the visa applicants (the applicants) did not meet cl.117.211 of Schedule 2 to the Regulations. Specifically, the delegate noted the applicants did not meet the definition of orphan relative r.1.14(a)(iii) which states that the applicant ‘is a relative of that other person’ for the following reasons:

   a.The sponsor consistently claimed through her migration history that a Getachew Ayele was her mother and Genet Tegegne her father and that she did not have any siblings

   b.The applicants in this case are claiming that their mother is the sister of the sponsor and daughter of Getachew Ayele despite the sponsor claiming that she did not have any siblings

   c.‘As there are limited options available to bring relatives to Australia, the Australian High Commission has observed, through past decision records, attempts made by sponsors to bring relatives to Australia under programmes such as the Orphan Relative Programme as a last resort when they have been unsuccessful in other pathways. The mission has found an increase in identity and family composition fraud in this caseload when undertaking checks to verify information presented in applications. It is for this reason that the Australian High Commission gives considerable weight to consistent information provided in the applicant’s claims and past immigration records as objective evidence, when there is limited or unreliable evidence presented by the applicant and sponsor to support an Orphan Relative visa application.’

   d.No official documents or photographs of the sponsor with the children’s family was provided

6. In addition, the delegate doubted that the applicants were orphans based upon claims that their mother is permanently incapacitated despite the following evidence being provided as described verbatim by the delegate:

   a.There is also a court order from the Amhara National Regional Government Supreme Court…the court considered an application by your mother requesting the court to verify she is your mother and guardian; and heir of your father. Further in this letter it is advised no opposition to the appeal has come forward. Based on the information provided, three witnesses corroborated your mother’s claim. At the end, the court approved her caretaker and guardianship in accordance with family law in Ethiopia. Based on the court order, it appears that your mother Ms. Asres Getachew AYELE has guardianship and custody of you being issued 10 months after the medical report indicating that she is not fit to provide care for her children. I would expect that someone who has been declared unfit to care for her children would have a court order removing the children from the custody rather than awarding it.

   b.You claim that your father is deceased. In support of this claim you have presented a letter from your Kebele Administrator. The letter dated 04 September 2008EC is as clearly outlined issued on the basis of a statement given by your mother. I note that death certificates are obtainable across Ethiopia and for this reason the Department on 16 May 2018 wrote to you to request the original burial and death records for your father. No further documentation in support of your father’s death has been received to date.

7. The review applicant appeared before the Tribunal by video on 26 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants. When speaking with the children I asked questions to both and allowed either to answer. As such answers given are recorded as being given by both. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

8. The review applicant was represented in relation to the review by her registered migration agent.

9. The Tribunal requested the participation of the mother of the two visa applicants. In a conversation between a Tribunal  Officer and the representative on 6 May 2021 and recorded in a case note, the representative stated that the mother could not participate because she has HIV/AIDS and mental health issues, can't use an interpreter, is in a critical condition/not well/not lucid, can't communicate due to her health issues, does not have long to live and can't use a computer.

10. As the applicant was able to travel out of her home to obtain a DNA test, noting that she would be assisted by her children to navigate the use of the telephone and the challenges of working through an interpreter could be minimised the Tribunal insisted that she participate. The visa applicants’ mother was present at the hearing at the insistence of the Tribunal.

11. On the hearing response form emailed to the Tribunal on the 21 July 2021 it stated that the mother will be present at the hearing but due to her illness she is hardly able to communicate and feels exhausted at most times.

    Background

12. The sponsor and her sister are from Injibara, Ethiopia. The sponsor explained that her sister met her husband in Kasa, a town 20 minutes from Injibara. After they married, they lived in Kasa but she does not know if he had any family there. She said that she may have heard about his family, but she isn’t sure.

13. A statutory declaration dated 11 June 2018 stating that during the sponsor’s application for her visa to Australia the main applicant of that application had told her not to mention her siblings or family members in Ethiopia. The sponsor said that it was for that reason that she did not mention her sister.

14. The sponsor provided information regarding her visits to Ethiopia. She said that she had visited her sister in 2014 at which time her sister, the mother of the applicants, was suffering from a mental health condition. She claims that she noticed that her sister could not care for her children so she decided that it would be better for the children to be brought up with her in Australia. She applied for the current visa under review on 23 November 2017.

15. Regarding her sister, the sponsor said that she could be aggressive due to her mental health condition. She recalled that during her 2018 visit her sister was by that time suffering from HIV but the sponsor did not know as it is taboo and she did not tell her.

16. The last time the sponsor visited Ethiopia was in 2020. She said that by this stage her sister was bedridden, she could not go to the toilet without her children and the children had stopped going to school because of their need to care for her. She spoke to the doctor who said that she may not have long to live.

17. I asked why both children had to drop out of school when one could have looked after their mother while the other was at school. She responded that it was only Menelik who could manage her as he was stronger, while his sister could look after her as a female. When I further pressed her on this, she said that she doesn’t know why they both quit school.

18. I asked about where they lived to which she responded Addis Ababa. When I put to her that the application mentioned Injibara, she said that they had relocated since then. They relocated because Injibara is a small town without a health clinic. I put to her that when I looked up Injibara on the internet I found it had a General Hospital and a health clinic. I asked why she would say that there is no health clinic. She said that she didn’t mean that there is no health care, but rather that there is better treatment in Addis Ababa.

19. The sponsor said that they moved in 2018 to Addis Ababa. She said that they moved to a suburb called Goro where they are renting accommodation and the children initially transferred to a school there.

20. I asked about the clinic that her sister attends in Addis Ababa where she receives her treatment. The sponsor said that she can’t remember the name of the clinic. She said that it is a single storey single building.

21. I asked the sponsor about the letter that was submitted from the medical clinic and specifically how it was obtained. She said that the mother asked for the letter, I clarified if that meant that her sister went to the clinic for treatment and asked for the letter. She said that all she knew was that the children asked someone at an internet café to email the letter to her. I raised the issue about the medical letter not having a phone number, address or letter head. She said that she does not know why the doctor wrote it that way. I asked if she had the contact details of the clinic, to which she said she doesn’t have them, but she said that it takes a lot of time to get a letter and there is no formal way of obtaining one.

22. I asked the visa applicants about the medical clinic that their mother attends. They said that the name of the clinic is Ahadu Medical Clinic, in Gerji suburb, Addis Ababa. The building has two floors, but the clinic is on the ground level and it is a single building. The children could not remember the name of the doctor treating their mother. They said that they got the letter from the clinic and sent it to their aunt. I asked the children to ask their mother. The mother said that she also doesn’t remember the name of the doctor. They said that the mother goes every month to get HIV medication. As for her mental health condition, they said that there is no medication, so they only go to a church.

23. I put to them that I was concerned about the letter from the medical clinic. It is not on a letter head and there are no contact details. They said that they don’t know why that is the case and said that they went together with their mother and asked the doctor directly.

24. I asked for the location of the clinic and they said Gerji, I asked if it was located close to anything prominent and they said that it was not. I asked for the phone number of the clinic and they said they don’t have it nor do they have any other documents from the clinic.

25. Considering the limited amount of information and a previous propensity to lie by the sponsor I requested Post in Ethiopia to verify the letter. The response from Post was:

    The Gerji Health Centre is a HIV/AIDS-specific facility located in Bole Sub-city, Addis Ababa. Post (Ayana, LES Consular Manager) visited Gerji on 10 October and met with Mr Tesfaye Bulcha, Emergency Room Head. Mr Bulcha was the signing authority on the documents issued by Gerji, which were subsequently authenticated by Bole health authorities. Mr Bulcha confirmed that Mrs Getachew had received HIV/AIDS-related treatment at Gerji, and that the documents were genuine. He noted also that Mrs Getachew's medical records indicated that she had previously suffered from tuberculosis (but had recovered from this by the time she sought treatment at Gerji). Mr Bulcha said that he would be happy to respond directly on follow up inquiries either by telephone [phone]) or by email ([email protected]).

26. Based upon this evidence I am satisfied that the visa applicant’s mother does have HIV/AIDS and that the letter submitted by the applicants from Gerji Health Centre is genuine. Although Post was unable to verify the second letter from Ahuda Medium Clinic due to it being in a conflict zone, I am satisfied that the letter is also genuine.  

27. The relevant content of the two letters is as follows:

    a.Gerji:

    As mentioned above Asres Getachew who was diagnosed with HIV AIDS was under treatment and follow up from 5/7/2018 until now in our health center.

    b.Ahadu Medium Clinic

    [O]ur client Mrs. Asres Getachew Ayele, on her arrival to the clinic has finished the TB medication and was taking medication for HIV. She is exhausted by the medication and is unable to take care of herself.

    Therefore, the patient, due to her health situation, requires intensive support, is unable to work and is not capable to raise her children. She is at a terminal stage. We, therefore, request if anyone would like to help the patient and her children.

28. That the mother of the applicants is receiving treatment does not necessarily mean that she will be able to live her life normally. Antiretroviral Treatment does not have a 100% life sustaining outcome. In reviewing academic articles that discuss the situation of people living with HIV in Ethiopia the following article, abstract reproduced below, offered insight into the situation:

    Background. Even though the benefit of antiretroviral therapy (ART) is well established, there is a regional variation in the extent of its benefit. The aim of this review is to highlight mortality and its predictors in Ethiopian adult HIV patients who were on ART. Methods. Relevant articles were searched on PubMed and Google Scholar databases. The search terms used in different combinations were predictor/determinant/factors, mortality/death/survival, HIV, ART/HAART, and Ethiopia. Result. 5–40.8% of the patients died during the follow-up period. More than half (50–68.8%) of the deaths occurred within 6 months of initiating ART. Advanced stage disease (stage III and stage IV), nonworking functional status (bedridden and ambulatory), low baseline CD4 count, low baseline hemoglobin level, TB coinfection, lower baseline weight, and poor treatment adherence were commonly identified as predictors of death in HIV patients. Conclusion. 5–40.8% of HIV patients in Ethiopia die in 2–5 years of initiating antiretroviral treatment. Most of the deaths in HIV patients occur early in the course of treatment. Special emphasis should be given for patients with advanced stage disease, nonworking functional status, low baseline CD4 count, low baseline hemoglobin level, TB coinfection, lower baseline weight, and poor treatment adherence.[1]

    [1] Mohammed Biset Ayalew, "Mortality and Its Predictors among HIV Infected Patients Taking Antiretroviral Treatment in Ethiopia: A Systematic Review", AIDS Research and Treatment, vol. 2017, Article ID 5415298, 10 pages, 2017. >

    As noted, 5-40% of HIV patients died within 2-5 years while receiving treatment. The diagnosis by Ahuda Medium Clinic that the applicants’ mother is at a terminal stage despite receiving ART for three years is aligned with scholarship on this issue and as such I accept it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. The issue in the present case is whether the applicants are relatives of the sponsor and whether the applicants’ mother is permanently incapacitated.

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

30. 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.

31. ‘Orphan relative’ is defined in r.1.14 of the Regulations as:

    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.

32. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): r.1.03.  In the present case, Alem Getachew Ayele, is the claimed relevant Australian relative who claims to be the aunt of the two applicants.

33. The sponsor provided evidence of being an Australian citizen which she acquired on 22 October 2014.

34. For the reasons below, I find 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. Therefore, the Tribunal finds that cl.117.211(a) is met and continues to be met at the time of decision.

    Age – r.1.14(a)(i)

35. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The first named applicant was born on the 11 October 2004 and the second named applicant on the 6 March 2003. At the time of application (23 November 2017) both applicants were under the age of 18.

36. At the time of decision, the first named applicant was under 18 years of age and the second named had turned 18. Accordingly, r.1.14(a)(i) was met at the time of application for both applicants and continues to be met at the time of decision for the first applicant but not for the second applicant. As such r.1.14(a)(i) is met for the first named applicant.

37. For the second named applicant r.1.14(1)(i) is not met but cl.117.221(b) carves out applicants who met the age criteria at the time of application but do not continue to meet it at the time of decision. As such I am satisfied that r.1.14(a)(i) is also met for the first applicant.

    Spouse or de facto partner – r.1.14(a)(ii)

1. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. I asked the children if they were married and both said no. There is no evidence before me to suggest otherwise. I am satisfied that neither of the children are married nor were they ever married. 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)

2. 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.

3. Due to credibility concerns arising from the significant lies given by the sponsor on her own visa application in which she claimed that she did not have any siblings I did not accept the oral and documentary evidence provided. Instead, I offered the sponsor a chance to undertake DNA testing which she accepted.

4. The results of the DNA testing found that Asres Getachew, the claimed mother of the applicants, is the mother of the applicants.

5. The DNA tests also considered kinship relationship between Alem Getachew Eyele, the sponsor, and Asres Getachew, the mother of the applicants. The interpreted results contained within the report states that ‘there is extremely strong support for either a full or half sibling relationship’ between them.

6. Based upon the DNA results I am satisfied that the applicants are relatives of an Australian citizen.

7. 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 – r.1.14(b)

8. 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.

9. The following evidence regarding the mother’s capacity to care for the children was available to the Tribunal:

   ·A social court decision in Amhara state concluding, based upon the evidence of three people, that the applicants’ father had passed away

   ·A letter dated 4/9/2008 of the Ethiopian calendar from Kessa kebele administrator stating that the father of both applicants has died and that the mother has a ‘very serious illness and she no means to support her kids and send them to school.’

   ·A letter from the Felege Hiwot Referral Hospital dated 18/1/2009 of the Ethiopian calendar stating that the applicants’ mother has MDD with psychotic features and that ‘the medical board decided that patient is not fit medically to care for her children.’

   ·A statutory declaration by the sponsor which states, ‘In 2014, I went back to Ethiopia with my daughter to see my family, I was shocked with the condition under which my sister and all children were live. My sister was diagnosed with Major Depressive Disorder (MDD) with Psychotic feature, the house where they live was filthy, my sister simply could not care for herself, let alone Jonatan and her two children. As Jonatan was the eldest among the three children, he had to look after my sister.’

   ·The biological mother of the applicants has major depressive disorder with psychotic features. This is a condition that is described as causes people to see, hear, or believe things that aren’t real.[2]

   ·Pension card from the children’s father available to the mother showing the pension of 639 Birr per month which amounts to $18 per month.

   ·Photos of the mother alongside her children with evident large skin ailments that are purportedly a result of weakened immune system arising from HIV

   ·Letter from Woreda 13 Gerji Health Centre stating that the mother was diagnosed with HIV and has been under treatment at their health centre.

   ·Letter from Ahadu Medium Clinic stating that the health situation of the mother is at a terminal

   [2] >

   The mother was diagnosed with major depressive disorder with psychotic features. Independent information on this ailment states:

   There are two different types of major depressive disorder with psychotic features. In both, delusions and hallucinations are present, but the affected person may experience major depressive disorder with mood-congruent psychotic features or with mood-incongruent psychotic features.

   Major depressive disorder with mood-congruent psychotic features means that the content of the hallucinations and delusions is consistent with typical depressive themes. These may include feelings of personal inadequacy, guilt, or worthlessness. Major depressive disorder with mood-incongruent psychotic features means that the content of the hallucinations and delusions don’t involve typical depressive themes. Some people may also experience a combination of both mood-congruent and mood-incongruent themes in their delusions and hallucinations.

   The symptoms of either type are particularly dangerous, as the delusions and hallucinations can be frightening and can increase the risk of suicide. Prompt diagnosis and treatment is critical to preventing someone from hurting themselves or others.[3]

   [3] ibid

10. During the hearing, I was told that the mother could sometimes hear what was being said when the voice was loud. At one stage I was told that she had fallen asleep. I asked the children to wake her and to ask if she was aware that the process could lead to the children departing for Australia. She responded that yes, she said that it would be good. She said that if she dies, they will be homeless. She said that she has no power or means to support them. She said that she can’t walk.

11. Not available to the Department but submitted subsequently is a medical certificate from Ahadu Medium Clinic in Ethiopia dated 15 April 2021 which states that the applicant’s mother, Asres Getachew Ayele, has had TB and is HIV positive. The medical assessment states, ‘the patient, due to her health situation, requires intensive support, is unable to work and is not capable to raise her children. She is at a terminal stage. We, therefore, request if anyone would like to help the patient and her children.’ While I have accepted the genuineness of this letter, I place less weight on its assessment as the mother has not been treated by this clinic since she left Injibara.

12. Evidence provided at the hearing from the sponsor included, that her sister gets some support from the churches, receives a pension and depends upon additional support from the sponsor. She said that her sister is now always in bed. She only moves when she goes to the toilet. She said that she has been living like that for many years. She remembers that in 2018 she was already bedridden. She said that neighbours would help do the shopping and what needed to be done around the house. This help that she receives from neighbours was received in both Addis Ababa and Injibara.

13. The children told the Tribunal that they have lived in Goro, Addis Ababa, for the last four years. When they first moved to Addis Ababa they did not immediately go to school. They only started going to school about two years ago. For those first two years they said that they were caring for their mother. This appears to be supported by the documents submitted with a letter for their last school in Injimara dated 2018 and the school record of their new school from 2020. I asked what changed so that it allowed them to go to school. They said that they didn’t have the finances to buy uniforms, stationary and books. They said that they were able to start to go to school because of the financial help from the sponsor. The children explained that they care for her in shifts. When one child goes to school the other stays at home. Sometimes they both stay at home.

14. The children said that they don’t know anyone from their father’s side whereas they have a half-uncle on their mother’s side. Both of his parents have died. They don’t know any other relatives.

15. Regarding the parenting they received from their mother the children said that since they were very young their mother could not provide support as a parent. They said that there had been a gradual deterioration of her health and that they couldn’t remember the exact age, but they believe it to be around the year 2000 in the Ethiopian calendar (2007/2008 in the Gregorian calendar) that her condition began to deteriorate. They said that mental health was the initial reason that limited her from caring from them.

16. In a submission it was stated that the mother “cannot do household chores. She cannot go to the market…she cannot get off the bed herself.” The children said that she does nothing. I asked whether she was doing housework and supporting them while in Injibara, they said that even then she was not looking after them, instead, they said that they were looking after her.

17. The children said that they have had a very difficult upbringing without a proper education. Financially, they receive 600 Birr per month ($18.50) from their father’s pension. They said that this is not enough and are dependent upon their aunt to support them. They said that there were times when they missed food and their neighbours would give them some. They did not look for work because they had to care for their mother. Their mother’s mental health condition didn’t allow them to look for work they claimed. When I asked if they could work in shifts, as they are at school now, the son said that they couldn’t look for work because their level of education is elementary, and no one would hire them.

18. I note in Singh v MIMIA [2008] FMCA 587 at [45] Barnes FM noted:

    The Tribunal did not err in having regard to the applicant's age in deciding that it was not satisfied that he was in need of the kind of care that his mother (even if incapacitated in the manner claimed) could not provide for him. The Tribunal did not simply decide that the applicant necessarily failed simply because he was within five weeks or so of turning 18 years old. Rather it had regarded his age as a factor relevant to whether his mother was capable of caring for him. It was proper for the Tribunal to have regard to matters such as an expectation that, given the applicant's age, he would be capable of being reasonably self-reliant in many respects, consistent with the approach in Nguyen.

19. The applicants are 17 and 18 years old at the time of this decision. The pertinent question is, as per r.1.14(b) whether ‘the applicant(s) cannot be cared for.’ I accept that the applicants’ father is dead and as such he cannot care for his children. Regarding the applicants’ mother, she has provided evidence that she is bed ridden and incapable of undertaking the most basic of responsibilities for reasons of a terminal disease and debilitating mental health challenges. I have accepted this evidence and find that she is permanently incapacitated. I also accept that the children are caring for their mother. The question, though, is whether the mother’s current state can provide ‘care’ for a 17 and 18-year-old.

20. Care is more than simply the provision of food or undertaking of household chores. Care includes nurturing, emotional support and guidance from childhood into adulthood. While there are many Ethiopian children who are of the age of the two visa applicants and living without parents, and as such could be said that the vias applicants are no worse off than many others, that is not what the law asks. Instead, the question is whether the parents can provide care. Considering the state of the mother, I find that she cannot. I find that her physical and mental health are so debilitating that she is incapable of providing care including nurturing and emotional support as the children transition from childhood to adulthood.

21. 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)

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.

23. The best interests of a child are outlined in the Convention on the Rights of the Child. This includes maintaining family unity and that a child shall not be separated from his or her parents:

    States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

24. I note that taking away the two visa applicants from their mother, albeit a mother who is unable to care for them, is contrary to the principles of family unity and is not preferable. But the convention also emphasises the right to an adequate standard of living:

    The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.

    States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

25. It is clear from the circumstances of the children as described by the sponsor and the children themselves that neither the parents nor the state have been able to meet this standard.

26. The sponsor lives in a house with her daughter. The house was originally bought by her then husband, but he now lives with his parents. She works three hours per day and receives some support from the government. The sponsors daughter goes to a private school, paid for by her father. The sponsor said that she is looking for more work.

27. Noting that the environment into which the visa applicants would be moving to does not raise any compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant and that the separation of the children from their mother is outweighed by other interests of the child I find that r.1.14(c) was met at the time of application and continues to be met at the time of decision.

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

    DECISION

29. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and second named visa applicants meet the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl.117.21 of Schedule 2 to the Regulations; and

    ·cl.117.221 of Schedule 2 to the Regulations.

    Denis Dragovic
    Senior Member