Biyo (Migration)

[2024] AATA 3019

Biyo (Migration) [2024] AATA 3019 (15 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Madin Biyo

VISA APPLICANTS:  Mr Mohamed Sultan Hamed
Mr Tahir Sultan Hamed

CASE NUMBER:  2116535

HOME AFFAIRS REFERENCE(S):          2017024456 OSF2017024456

MEMBER:Jason Pennell

DATE:15 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 15 May 2024 at 12.11pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – aunt and nephews – two birth certificates for each applicant, with different dates – one date makes applicants over 18, the other under 18 – parents dead, permanently incapacitated or of unknown whereabouts – death certificates for applicants’ parents not genuine – documents provided by brother and review applicant’s limited knowledge about them – no other independent documentation – best interests of children – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.14; Schedule 2, cls 117.211, 117.221, 117.223

CASES

EC v MIMIA [2004] FCA 978

Nguyen v MIMA (1998) 158 ALR 639

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 September 2021 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 applied for the visas on 3 May 2017. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.

3. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211, cl 117.221 and cl 117.223 of Schedule 2 to the Regulations.

4. The delegate refused to grant the visas because the first named visa applicant (the visa applicant) did not meet the requirements as prescribed in cl 117.211, cl 117.221 and cl 117.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant was an orphan and under 18 years of age at the time of the application.[1]

   [1]     Decision record, Application ID 40628851001 dated 8 September 2021; Dept File No OSF2017024457 Doc ID: 9263770.

5. The review applicant appeared before the Tribunal on 22 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the visa applicant has complied with cl 117.211, cl 117.221 and cl 117.223 of Schedule 2 to the Regulations.

2. The review applicant’s evidence was that she was born on [date] in Arsi, Ethiopia. She was not able to say if her parents remained alive or if they were living in Ethiopia. Her father owned and operated a small business, and her mother was engaged in home duties.

3. The review applicant’s evidence was that she never attended school. Instead, she was engaged in home duties, helping with domestic matters around her home. The review applicant’s evidence was that she has 4 sisters and 6 brothers, however, she was not able to say where they were or if they remained alive.

4. The review applicant’s evidence was that prior to coming to Australia she spent many years in Kenya, where she met her husband. Her evidence was that her husband travelled to Australia and then sponsored her to travel to Australia. She was married in 2008 to an Oromo man in Australia but they separated in 2010. She has 2 children, a boy and a girl aged 6 and 9 years of age.

5. Her evidence was that she has been supporting the visa applicants in Ethiopia. Her evidence was that the visa applicants’ parents had passed away. She claimed that the visa applicants continued to live in the village in Arsi, Ethiopia and that she helped support them by sending money. Her evidence was that in Ethiopia the visa applicants were cared for and supported by their neighbour’s wife.

6. The review applicant’s evidence was that she was not able to read or write. As a result, she was not able to say if any of the documents produced to the Department were valid or false. Her evidence was that one of her brothers, Mohammad, had provided her with documents for the purposes of making the application for the Orphan Relative visa. The review applicant was not involved in obtaining the documents in support of the visa applicant and had no knowledge of the documents or how they were obtained.

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

1. Clause 117.211 of Schedule 2 to the Regulations requires that at the time of application, the visa applicant is an orphan relative of an Australian relative[2] or is not an orphan relative only because the applicant has been adopted by an Australian relative.[3] 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.[4] That is, the orphan relative definition requires that the applicant has not turned 18.[5] However, a person may still be granted a Subclass 117 or 837 visa if he or she has turned 18 at the time of decision. The time of decision criteria require that the applicant either continues to be an ‘orphan relative’ at the time of decision or would continue to be an ‘orphan relative’ except that he or she has turned 18.[6]

   [2] Clause 117.211(a), Migration Regulations 1994, Schedule 2.

   [3] Clause 117.211(b), Migration Regulations 1994, Schedule 2.

   [4] Clause 117.221, Migration Regulations 1994, Schedule 2.

   [5]     Regulation 1.14(a)(i), Migration Regulations 1994.

   [6] Clause 117.221(b), Migration Regulations 1994, Schedule 2.

2. ‘Orphan relative’ is defined in reg 1.14 of the Regulations,[7] which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.[8] 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).[9] In the present case, the review applicant, Miss Madin Biyo, claims to be the visa applicants’ aunt and therefore the relevant Australian relative.

   [7]     Regulation 1.14, Migration Regulations 1994.

   [8] Clause 117.111, Migration Regulations 1994, Schedule 2.

   [9]     Regulation 1.03, Migration Regulations 1994.

3. In this case, copies of two birth certificates were provided to the Tribunal in relation to each applicant, Mohamed Sultan Hamed [10] (‘Mohamed’) and Tahir Sultan Hamed (‘Tahir’). As to Mohamed, a birth certificate dated 23 January 2008 recorded him being born on [Date 1] in Wajicilalo, Ethiopia.[11] A second birth certificate dated 3 October 2015 recorded Mohamed as being born on [Date 2] in Wajicilalo, Ethiopia.[12] As to Tahir, a birth certificate dated 23 January 2008[13] recorded him being born on [Date 3] while a second birth certificate dated 3 October 2015 recorded him as being born on [Date 4].[14] The review applicant was not able to explain how each applicant had two birth certificates that each had different birth dates. In addition, save to say that they were provided by her brother Mohammad, she was not able to inform the Tribunal how they were obtained or the reason why their birth dates were different in each birth certificate.

   [10]    Birth certificates; Dept file No OSF2017024456 ID Doc: 9259148.

   [11]    Mohamed Birth certificate dated 23 January 2008 Dept file No OSF2017024456 ID Doc: 9259148.

   [12]    Mohamed Birth certificate dated 3 October 2015 Dept file No OSF2017024456 ID Doc: 9259148.

   [13]    Tahir Birth certificate dated 23 January 2008; Dept file No OSF2017024456 ID Doc: 9259148.

   [14]    Tahir Birth certificate dated 3 October 2015; Dept file No OSF2017024456 ID Doc: 9259148.

4. The country information[15] reports that Ethiopian law requires the registration of all children within 90 days of birth. However, in practice, it’s reported that only a small percentage of births are registered, and children issued birth certificates. While registration is most frequent in Addis Ababa, non-registration is particularly acute in more rural areas where most births occur outside health facilities.[16] Registration of children who are born in a hospital requires the payment of a fee, which can be a deterrent to poor families. The absence of a birth certificate can complicate access to other forms of legal documentation where a birth certificate is required as a form of evidence.[17]

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

   [16]    Ibid.

   [17]    Ibid.

5. The Tribunal accepts that in Ethiopia, especially in the Oromia region, identity documents such as birth certificates are not relied upon and as such are generally not required within the local community. The Tribunal accepts that given the security situation in Ethiopia, Mohamed’s and Tahir’s life would likely be restricted and as such they would not need identity documents for the purposes of daily life. However, there was no explanation provided as to how each of the applicants had two birth certificates that recorded different birth dates. There was no evidence as to whether the birth dates in each certificate were recorded in the Ethiopian calendar (E.C.) or Gregorian calendar. In any event, the Tribunal notes that even if one birth certificate was recorded in the Ethiopian calendar and the other in the Gregorian calendar each of the applicants’ birth dates would not match. The review applicant did not explain how each applicant had two birth dates. Her evidence was that she had nothing to do with obtaining the birth certificates. Her evidence was that she had been provided the documents by her brother, Mohammad, for the purpose of making the application for an Orphan Relative visa. She had no knowledge of how the documents were obtained or what communications had been made (if any) for the purpose of obtaining the birth certificates.

6. The Tribunal notes that the application for the Orphan Relative visa was made on 3 May 2017. Regulation 1.14 of the Regulations requires that an applicant has not turned 18 years of age at the time of application. As such, according to one of the birth certificates for each applicant they were over the age of 18 at the time of application. The Tribunal notes that in a statement by Tahir dated 20 January 2008[18] he states that he was born in [year]. and that he is 11 years of age. As a result, based on his own statement, he would have been over the age of 18 at the time of the application on 3 May 2017. The review applicant was not able to clarify the age of each applicant and did not provide any further evidence for the purpose of clarifying their date of birth.

   [18]    Tahir’s statement dated 20 January 2008, Dept file No OSF2017024456 ID Doc: 9259148.

7. Therefore, given the conflicting documentary evidence and the absence of any explanation for the different birth dates provided in each birth certificate the Tribunal does not accept that the applicants were under the age of 18 at the time of the application and as such finds that they are not orphan relatives pursuant to reg 1.14 of the Regulations.

8. Regulation 117.211 requires that an applicant be an orphan relative of the sponsor as defined in reg 1.14 of the Regulations. The review applicant provided death certificate forms from the Adama Science and Technology University’s Asella Hospital (Asella Hospital) for the applicants’ mother and father.[19] The Department conducted background checks in relation to each death certificate form and found that the applicants’ parents were not patients at the Asella Hospital. The hospital reported to the Department that the death certificates provided did not originate from the hospital.[20] Further, the hospital reported to the Department that the doctor who signed each death certificate form does not work at the hospital. As a result, the Department determined that the death certificate forms provided by the review applicant were not genuine and therefore considered to be counterfeit.[21]

   [19]    Death Certificate Forms from Adama Science and Technology University Asella Hospital for Kedija Genmede Gelate dated 13 July 2016 and Sultan Hamed Yusuf Biyo dated 13 July 2016; Dept File No OSF2017024456 Doc ID: 9259148.

   [20]    Decision record, Application ID 40628851001 dated 8 September 2021; Dept File No OSF2017024457 Doc ID: 9263770.

   [21]    Ibid.

9. In a statement dated 3 October 2015 made by three witnesses (Qaso Gabana, Ibrahim Beshir and Adem Kedir), they each state that the applicants’ father and mother had died of tuberculosis in 2006 and 2008 respectively. However, none of the witnesses state how they knew the applicants’ parents or how they were informed of their death. The Tribunal notes that contrary to the evidence of each witness, the parents’ death certificates are dated July 2016 and do not refer to them having died by tuberculosis. As such the Tribunal places no weight on the witnesses’ statement dated 3 October 2015.

10. The review applicant’s evidence was that they died because they were sick, otherwise she was not able to say. The review applicant’s evidence was that each death certificate had been provided to her by her brother for the purpose of making the application for the Orphan Relative visa. Her evidence was that that she had nothing to do with obtaining the death certificates. She was not able to make any comment or provide any explanation in relation to the validity of the death certificates as detailed by the Asella Hospital to the Department. The applicant did not provide any independent documentation (such as photographs of grave sites or doctors’ statements) as evidence that the applicants’ parents had died as claimed.

11. Therefore, based on the Department’s investigations, the Tribunal finds that the death certificates are bogus documents as defined under the Act.

12. Accordingly, based on the Department’s investigations, the conflicting information contained in the documents provided and the lack of any further independent documentation to support the claim that the visa applicants were orphans at the time of the application, the Tribunal finds that the visa applicants were not orphan relatives of an Australian relative at the time of application. Furthermore, the Tribunal finds that the visa applicants are not orphan relatives of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is not met, and does not continue to be met at the time of decision.

Age – reg 1.14(a)(i)

1. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18 at the time of application. Based on the documentation provided by the review applicant, including the applicants’ birth certificates that show they were each born on two different dates, the Tribunal does not accept that they were under the age of 18 at the time of the visa application on 3 May 2017. Accordingly, the Tribunal finds that reg 1.14(a)(i) was not met at the time of application and does not continue to be met at the time of decision.

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

1. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The evidence of the review applicant was that Mohamed was not married and did not have a de-facto partner at the time of the application. The Tribunal accepts that the visa applicants were not married or in de facto partnerships at the time of the application in accordance with reg 1.14(a)(ii). However, the Tribunal has found that the visa applicants are not orphan relatives for the purposes of reg 1.14(a). As a result, reg 1.14(a)(ii) was not met at the time of application and continues not to be met at the time of decision.

Relative – reg 1.14(a)(iii)

1. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa. The review applicant’s evidence was that Mohamed and Tahir were her nephews. There was no evidence to the contrary. As such the Tribunal accepts that Mohamed and Tahir are her nephews as claimed and as such are relatives for the purposes of reg 1.14(a)(iii) of the Regulations. However, the Tribunal has found that the visa applicants are not orphan relatives for the purposes of reg 1.14(a). As a result, reg 1.14(a)(iii) was not met at the time of application and continues not to be met at the time of decision.

No parental care – reg 1.14(b)

1. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent.[22] In this case the Tribunal has found that the death certificates in relation to each of the applicants’ parents are bogus. In the absence of any legitimate independent evidence that the applicants’ parents are dead as claimed, the Tribunal does not accept that the applicants’ parents are dead, permanently incapacitated or of unknown whereabouts as claimed. Accordingly, reg 1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

Best interests – reg 1.14(c)

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

1. 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.

2. Country information reports that over the past 5 years, Ethiopia’s Oromia region has been plagued by conflict between the Oromo Liberation Army (OLA), the armed splinter group of the Oromo Liberation Front (OLF), and government security forces.[23] While tensions initially simmered, clashes have drastically intensified in recent times with no solution in sight. The prolonged conflict has resulted in considerable loss of life, reported human rights abuses and extensive disruption of civilian communities across Oromia. It’s reported that the instability has allowed kidnappings for ransom to flourish unchecked, with numerous civilians being abducted.[24] 

   [23]    Addis Standard ‘Analysis: Rising abductions for ransom threaten human security in conflict hit areas, Oromia region’, 26 October 2023; Ibid.

3. The Ethiopian government has continued to use military force in the Oromia region to deal with OLA rebels. It is reported that the ongoing conflict between the OLA and Ethiopian security forces has killed and displaced scores of civilians. It was reported[25] in August 2020 that since April 2018, the OLA has killed more than 700 civilians in the East and West Guji zones and committed other atrocities against the civilians including torture, rape, sexual abuse, robbery, vandalism and arson.[26] Abductions for ransom are common.

   [25]ETHIOPIAN INSIGHT, ‘GUJI OROMO NEED FREEDOM FROM LIBERATORS’ 3 AUGUST 2020 BY NAGESSA DUBE; Ibid.

1. The government undertook a counterinsurgency campaign in southern and western Oromia which resulted in serious human rights violations and abuses against local communities.[27] In March 2021, Eritrean army troops were sent to the Oromia region to halt advances by the OLA.[28] It is reported[29] that arrests and summary executions have become commonplace in parts of Oromia as the Ethiopian security forces wage war on armed Oromo separatists. Civilians have been treated brutally with indiscriminate repression of local dissent. Oromia‑based opposition parties, including the OFC, have condemned the militarisation of the region, particularly considering reports of abuse committed against civilians. They have called for the peaceful resolution of a conflict that the government has been accused of attempting to conceal, going as far as shutting down internet and phone services to the conflict zone.[30] Despite a resolution in the Tigray region, it’s reported that a fierce battle continues between the Ethiopian government forces and the OLA.[31]

   [27]    Human Rights Watch – Ethiopia Events 2020, Eritrea Hub. ‘Report: 'Eritrean troops despatched to Oromia’ 22 March 2021; The Economist,’ A hidden war threatens Ethiopia’s transition to democracy’ 21 May 2020; Ibid.

   [31]    The Africa Report, ‘Ethiopia’s Oromia region at risk of full-blown conflict amid stalled negotiations for peace’, 17 May 2023, Samuel Getachew; >

   The country information[32] reports that the situation in Ethiopia remains dangerous and volatile with considerable inter-ethnic tensions. It is feared by opposition parties that the Abiy Ahmed government has turned against Oromo leaders, notably arresting Jawar Mohammed on terrorism charges, and returned to imperial-style domination. It’s reported[33] that the action of the government against the opposing parties has been an attempt to maintain control.

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

2. The Tribunal has taken into consideration the fact that the opposition parties in Ethiopia represent the varying ethnic groups in the country. In the case of the Oromo, the authorities have continued to act against the OLF and OLA. While politically motivated, the actions of the government have the effect of persecuting ethnic Oromo in a systematic and discriminatory manner.

3. While the Tribunal accepts that based on the available country information it would be in the best interest of the applicants to travel to Australia pursuant to reg 1.14(c), the Tribunal has not accepted that they are relative orphans pursuant to reg 1.14(a) of the Regulations. As a result, the Tribunal finds that cl 117.211 has not been met and continues not to be met.

Has the applicant been adopted by the Australian relative?

1. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship for applicants to meet this criterion.[34] In this case, for the reason stated above, the Tribunal has found that the visa applicants were not orphan relatives of the review applicant. The Tribunal is satisfied that cl 117.211(a) and cl 117.211(b) are not met and continue not to be met at the time of decision. Accordingly, the Tribunal finds that cl 117.211 is not met.

   [34]    EC v MIMIA [2004] FCA 978.

2. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. As such the Tribunal finds that cl 117.221 is not met.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicants Child (Migrant) (Class AH) visas.

Jason Pennell
Senior Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.14Orphan relative

An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

(a)the applicant:

(i)has not turned 18; and

(ii)does not have a spouse or de facto partner; and

(iii)is a relative of that other person; and

(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.