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 MekuriaCASE 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, 1.14CASES
Nguyen v MIMA (1998) 158 ALR 639
Singh v MIMIA [2008] FMCA 587STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
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.
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.
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.
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…
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Details
- Case
- [2021] AATA 4452
- Decision Date
CaseChat Overview and Summary
This case concerned an appeal by visa applicants against a decision regarding their application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicants claimed to be orphan relatives of an Australian relative, with their father deceased and their mother permanently incapacitated. The primary issues before the court were whether the applicants met the definition of "orphan relative" under the Migration Regulations, including whether they were under 18, not married, a relative of an Australian citizen, and unable to be cared for by either parent. Additionally, the court had to consider whether granting the visa would be in the best interests of the applicants.
The court, presided over by Denis Dragovic, was required to determine if the applicants satisfied the criteria for an orphan relative visa. This involved assessing whether the applicants were under 18 at the time of application and decision, whether they had a spouse or de facto partner, and crucially, whether they were a relative of an Australian citizen. The court also had to determine if both parents were deceased or permanently incapacitated, and if there were any compelling reasons to believe that granting the visa would not be in the applicants' best interests. The court considered extensive evidence regarding the applicants' mother's severe mental and physical health conditions, including Major Depressive Disorder with psychotic features and HIV, which rendered her unable to care for them. DNA testing was conducted to establish kinship, and academic research on HIV treatment outcomes in Ethiopia was considered to assess the mother's prognosis.
The court found that the applicants met the criteria for being an orphan relative. DNA testing confirmed a sibling relationship between the sponsor and the applicants' mother, establishing the applicants as relatives of an Australian citizen. The court accepted the evidence that the applicants' father was deceased and that their mother was permanently incapacitated due to her severe and debilitating physical and mental health conditions, making her unable to provide the necessary care, including nurturing and emotional support, for the applicants as they transitioned into adulthood. Furthermore, the court determined that granting the visa was in the best interests of the applicants, outweighing concerns about family separation, given the inability of their parents to provide an adequate standard of living. Consequently, the Tribunal remitted the applications for reconsideration by the Minister, directing that the applicants met the specified criteria for the Subclass 117 visa.
The court, presided over by Denis Dragovic, was required to determine if the applicants satisfied the criteria for an orphan relative visa. This involved assessing whether the applicants were under 18 at the time of application and decision, whether they had a spouse or de facto partner, and crucially, whether they were a relative of an Australian citizen. The court also had to determine if both parents were deceased or permanently incapacitated, and if there were any compelling reasons to believe that granting the visa would not be in the applicants' best interests. The court considered extensive evidence regarding the applicants' mother's severe mental and physical health conditions, including Major Depressive Disorder with psychotic features and HIV, which rendered her unable to care for them. DNA testing was conducted to establish kinship, and academic research on HIV treatment outcomes in Ethiopia was considered to assess the mother's prognosis.
The court found that the applicants met the criteria for being an orphan relative. DNA testing confirmed a sibling relationship between the sponsor and the applicants' mother, establishing the applicants as relatives of an Australian citizen. The court accepted the evidence that the applicants' father was deceased and that their mother was permanently incapacitated due to her severe and debilitating physical and mental health conditions, making her unable to provide the necessary care, including nurturing and emotional support, for the applicants as they transitioned into adulthood. Furthermore, the court determined that granting the visa was in the best interests of the applicants, outweighing concerns about family separation, given the inability of their parents to provide an adequate standard of living. Consequently, the Tribunal remitted the applications for reconsideration by the Minister, directing that the applicants met the specified criteria for the Subclass 117 visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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 EVIDENCEThe 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?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 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. 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.The sponsor provided evidence of being an Australian citizen which she acquired on 22 October 2014. 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)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. 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. 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)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)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.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.The results of the DNA testing found that Asres Getachew, the claimed mother of the applicants, is the mother of the applicants. 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. Based upon the DNA results I am satisfied that the applicants are relatives of 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 – r.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 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] ibidDuring 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. 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.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.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. 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. 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. 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. 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.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.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. 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.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 applicant. 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.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.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.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.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.Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISIONThe 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 DragovicSenior Member
Decision
Reasons for decision
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] ibidDuring 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. 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.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.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. 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. 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. 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. 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.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.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. 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.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 applicant. 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.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.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.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.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.Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISIONThe 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 DragovicSenior Member
Ratio Decidendi
Legal Principle Established
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