Hassen (Migration) - [2022] AATA 4620

Hassen (Migration) [2022] AATA 4620 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Shemshedin Mohammed Hassen
VISA APPLICANTS:  Master Saladin Abdurahman Mohammed
Mr Roba Abdurahman Mohammed
Miss Asina Abdurahman Mohammed
REPRESENTATIVE:  Ms Alexandra Stratigos
CASE NUMBER:  2111854
HOME AFFAIRS REFERENCE(S):          OSF2017/024050 OSF2017024050 OSF2017024051
MEMBER:Kira Raif
DATE:9 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant and the third named visa applicant meet the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations; and
·cl 117.221 of Schedule 2 to the Regulations.

The Tribunal affirms the decision not to grant the second named visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 09 November 2022 at 11:18am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – Federal Circuit and Family Court – ‘orphan relative’ of an Australian relative – niece and nephew – DNA testing – parental responsibility – no parental care – limited documentary and contemporaneous evidence – cultural and security issues in Ethiopia – hospital record – statements from attendees of funeral – appointment of ‘tutor and administrator’ by local court in Ethiopia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14; Schedule 2, cl 117.211
CASES
Nakad v MIAC [2013] FMCA 234
Nguyen v MIMA (1998) 158 ALR 639
statement of decision and reasons
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants are nationals of Ethiopia. They applied for the visas on 16 January 2017. The delegate refused to grant the visas because the visa applicants did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied they were orphan relatives of the Australian relative. The sponsor (the review applicant) sought review of the delegate’s decision. In March 2021 the Tribunal (differently constituted) affirmed the decision under review. The review applicant sought judicial review of the Tribunal’s decision and in September 2021 the Court remitted the matter to the Tribunal for reconsideration.
The review applicant appeared before the Tribunal on 5 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse Ms Aden. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to the two visa applicants and affirmed in relation to the remaining visa applicant.
Relevant law
At the time the application was made, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211 and cl.117.221. Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl 117.211(a)),or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl 117.211(b)). The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl 117.221.
‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): reg 1.03.
Evidence before the Tribunal
The review applicant provided to the Tribunal a copy of the primary decision records in relation to each of the visa applicants. These indicate that the visa applicants were sponsored by Mr Shemshedi Mohammed Hassen, who is claimed to be the visa applicants’ uncle. When making the application, the visa applicants stated that their father Abdurahman Mohammed and their mother Miski Usmael Ibro were deceased.
The delegate was satisfied that the visa applicants were under the age of 18, as claimed. With respect to the relationship between the visa applicants and the sponsor, the delegate noted that the sponsor declared Abdurahman Mohammed as his sibling in his own visa application. The delegate notes that the visa applicants’ birth certificates declares their parents as Abdurahman Mohammed and Miski Usmael Ibro but the birth certificates were issued shortly before the visa applications were made. The delegate notes that the visa applicants provided copies of their father’s and sponsor’s birth certificates and these show age difference of less than six months. In response to the delegate’s concerns about it, the sponsor to lack of reading and writing skills in English and stated that unfamiliarity with the Gregorian Calendar while living in Ethiopia contributed to the error on the birth certificates. The sponsor explained that birth records have no cultural significance for them the way they do in western culture. The delegate noted that no other evidence, such as historical documents or photographs, had been provided to demonstrate the relationship between the visa applicants and the sponsor and DNA testing was not offered due to the claimed nature of the relationship. The delegate was not satisfied the visa applicants were nephews or niece of the sponsor.
With respect to the visa applicants’ status as orphans, the delegate notes that the visa applicants claimed their mother died of eclampsia during childbirth in December 2013 and the visa applicants provided a hospital record dated October 2016. The visa applicants also claimed that their father died in August 2013 and they provided a guardianship order issued by the local court, which is recorded to have been issued on the basis of witness testimony rather that official records. The delegate noted that death certificates and burial records can be easily obtained and are issued at the time of death and burial in Ethiopia but these documents had not been provided despite the delegate’s request. Thus, the delegate did not accept that the visa applicants’ parents were deceased and that they were orphan relatives of the sponsor.
In his submission to the first Tribunal dated 1 March 2021 the review applicant stated that the children’s parents died in 2013 – their father was shot dead and the mother died at childbirth - and the sponsor was declared their ‘tutor and administrator’ by a court in Ethiopia. It is stated that following the deaths of the visa applicant’s parents, the sponsor cared for the children with the assistance of his adult daughter Faiza and after his migration to Australia, Faiza and another relative became the children’s carer. In 2016 Faiza was killed and the children were overseen by close neighbours. It is stated that the sponsor had consistently sent funds to Ethiopia to take care of their expenses. In 2016 the sponsor applied to the court to be recognised as their legal guardian and a court order was made in December 2016 confirming that the parents died in August and December 2013 respectively, recognising the sponsor as their uncle and appointing him as a tutor and administrator of the children.
The submission addresses the issue of the visa applicants’ age. As the delegate accepted that the children were under 18 at the time of application, and in the absence of any evidence to the contrary, the Tribunal accepts that claim.
With respect to the relationship between the visa applicants and the sponsor, the sponsor acknowledges that the birth certificate had an incorrect date of birth. The sponsor explained how that document was obtained and he claims that he had taken steps to correct the error but failed to destroy the incorrect birth certificate and inadvertently provided it with the application. the review applicant refers to document fraud in Ethiopia but also notes that some documents are more easily verifiable and this includes court orders. He notes that he had provided the court order which refers to him as the children’s uncle and names Abdurahman as the father of the children and the document presents a low risk of fraud. The review applicant notes that Ethiopia is a low document country and the situation has been worsened by the unrest in the country. The review applicant stated that the applicants are willing to undertake DNA testing to confirm the relationship.
With respect to the deaths of the visa applicants’ parents, the review applicant states that, contrary to the delegate’s findings, evidence of death such as death certificates and burial permits are not easily obtained and he refers to DFAT reports and other country information about lack of documentation in Ethiopia. The review applicant notes that there are a large number of close neighbours, including those who acted as witnesses in court, who are available to give evidence to confirm the claims and the review applicant notes that there is no evidence to contradict these claims.
The review applicant also submits that it is in the best interests of the children to grant them the visas, noting that he and his partner have been supporting the children since their parents died and have the capacity for such support in the future, while in Ethiopia the children do not have a parental figure. The review applicant provided a number of documents in support of his written submission.
The Tribunal has had regard to the statement from Ms Finlay, a social worker, who refers to the review applicant’s concerns about the visa applicant. While the Tribunal accepts the evidence in that statement, it does not assist the Tribunal in determining the issues that arise on review.
The review applicant provided an additional submission to the Tribunal on 29 April 2022. The review applicant confirms that two of the visa applicants reside in Ethiopia without family support and he stated that Roba is missing. The review applicant states that the children’s parent passed away in 2013 and he was declared tutor and administrator of the children. The review applicant submits that the adoption certificate should be given appropriate weight The Tribunal has been provided with a statement from the children’s carer, as well as multiple witnesses concerning the deaths of the children’s parents. The review applicant also provided evidence of having provided financial support to the children and evidence of his ability to care for the children. The review applicant provided to the Tribunal evidence from several third parties (witnesses and neighbours) who confirm the deaths of the visa applicants’ parents and refer to the difficulties with obtaining formal records. There is also before the Tribunal evidence concerning the sponsor’s capacity to care for the visa applicants.
Evidence before the Tribunal is that the visa applicants’ parents have passed away. There is minimal independent and verifiable evidence before the Tribunal to confirm that this is the case. While the Tribunal has been provided with several statements from claimed witnesses, there are no formal records, such as death certificates, hospital records, burial records, etc. The delegate formed the view that such documents should have been available to the applicants and the applicants claim that, for a variety of reasons, they are not.
The Tribunal would normally expect to see more documentary evidence than was made available in this case. Even if there are no formal death records available, in the Tribunal’s view, there are often other records such as evidence from the burial ceremony, photographic evidence from the burial sites, etc. Here, the review applicant (and his witnesses) claim that such evidence is not available. In particular, there is evidence before the Tribunal that it is not common to place identifying information, such as names, on the burial stones. While the Tribunal considers the presented evidence concerning the deaths of the visa applicants’ parents unsatisfactory, the Tribunal acknowledges the reasons why more probative evidence may not have been available.
In the particular circumstances of this case, the Tribunal has decided to give significant weight to the statements from third parties who attest to the deaths of the parents. They claim to have observed the family circumstances and to be familiar with those. There is consistent evidence before the Tribunal that the children are in the care of others (which supports the claims that the parents have passed away). The Tribunal places weight on the fact that the sponsor has been appointed as an ‘administrator’ of the children and while that in itself is not evidence of the parents’ passing, it does support the visa applicants’ claims that their parents have passed away.
In oral evidence, the review applicant told the Tribunal that his brother had been killed by an unknown person while travelling in Somali region in Ethiopia. He had been travelling with a group of people when he was killed and people he was travelling with collected his body and brought it home. The review applicant states that his brother was killed in August 2013 and he was told straight away about his brother’s death. The applicant denies that he had made any visa applications in 2014 and said he applied for a Partner visa in February 2012, with the visa granted in 2015.
The review applicant states that when he found out about his brother’s death, they conducted a burial ceremony which was attended by local people. The review applicant states that he could not apply for his brother’s death certificate because he was concerned about his own safety as he did not know who killed his brother.
With respect to the dates of birth recorded on his and his brother’s birth certificates, Mr Hassen states he noticed the error when the certificates were issued. In the Tribunal’s view, the error indicates that the birth records are of limited probative value and cannot be given any weight as evidence of the sponsor’s relationship with the visa applicants’ father but given the Tribunal’s findings about the relationship set out below, the Tribunal does not consider this error to be significant. Insofar as the birth certificates evidence the visa applicants’ age, as noted above, it has been accepted that they were under 18 when the application was made.
The Tribunal’s findings
Age – reg 1.14(a)(i)
Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicants claim to have been born in December 2013, October 2012 and around January 2000.
As noted above, the children had presented their birth records with the application, but these were issued shortly before the applications were made. In his own evidence to the Tribunal the review applicant explains that dates are not significant in their culture and that there may be discrepancies when converting dates to different calendars. In these circumstances, the Tribunal does not consider birth certificates to be probative evidence of the visa applicants’ date of birth. However, the Tribunal acknowledges that the evidence about the visa applicants’ dates of birth has been consistent throughout the application process and the delegate accepted that the visa applicants were under the age of 18 when the applications were made. As noted above, in the absence of any information to the contrary, the Tribunal accepts that the visa applicants were under the age of 18 when the applications were made. They met r. 1.14(a)(i) at the time of the application.
Spouse or de facto partner – reg 1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is nothing before the Tribunal to indicate that Saladin and Asina have spouses or de facto partners. The Tribunal is satisfied that they met reg 1.14(a)(ii) at the time of application and continue to meet it at the time of decision.
However, there is no evidence before the Tribunal about Roba’s present circumstances. He is reported to have been missing. There could have been any number of changes to his personal circumstances of which the Tribunal is unaware. In these circumstances, the Tribunal cannot be satisfied that at the time of this decision, Roba does not have a spouse or de facto partner. The Tribunal is not satisfied he meets r. 1.14(a)(ii) at the time of this decision. The Tribunal is not satisfied he meets cl. 117.221.
Relative – reg 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 reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.
At the request of the review applicant, the Tribunal arranged for DNA testing to be completed to establish the relationship between the review applicant, his claimed nephew Saladin and his claimed niece Asina. At the time of testing, Roba was missing and no samples could be collected from him.
On 19 October 2022 the Tribunal received the results of the test. These show that the review applicant is ‘very likely’ to be related to Saladin as uncle / nephew but ‘unlikely’ to be related to Asina as his niece. The Tribunal provided that information to the review applicant pursuant to s. 359A of the Act. In his response to the Tribunal’s correspondence, the review applicant states that this information came ‘as a complete shock’ to him and to the best of his knowledge, Asina is the daughter of his brother and his wife, she was raised by his brother’s family as his child and considered Abdurahman as her father. The review applicant notes that under s. 5 of the Act, a parent is not limited to a biological parent. Alternatively, the review applicant argues that Asina may be considered a step-daughter of Abdurahman (and his step-niece) and that it can be said that the whereabouts of her biological father are unknown and have always been unknown as he was never present in her life.
The term ‘child’ is defined in s 5CA of the Act. Subsection (1) states that without limiting (emphasis added) who is a child of a person of this Act, each of the following is the child of a person:
(a)someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b)someone who is an adopted child of the person within the meaning of this Act.
Notably, that definition is non-exhaustive and it is therefore necessary to give consideration to the children’s situation and their relationship with the primary visa applicant and whether that might be considered a parent - child relationship. In Nakad v MIAC [2013] FMCA 234, the Court stated, in obiter, that given the terms of s 5CA it is possible that a niece or nephew may be capable of satisfying the definition of ‘child’. Further, the Federal Circuit Court remitted by consent the application MLG4134/2019 on the basis that the Tribunal had erred in confining its consideration of whether the applicant was the ‘child’ of his grandmother only to the circumstances in s 5CA(1)(a) and (b).

In this case, the Tribunal accepts the review applicant’s evidence that the outcome of the DNA test was unexpected and that he and his partner genuinely believed Asina to the biological child of his brother. Importantly, the Tribunal accepts the review applicant’s evidence that Asina was brought up in his brother’s family and was always considered by the family as a child of Abdurahman and his wife. The Tribunal accepts that the review applicant’s brother and his wife had always had parental responsibilities in relation to Asina prior to their passing and that there was no other person who had such responsibilities. The Tribunal accepts that Abdurahman and Miski Usmael Ibro had the daily care and control of Asina before their deaths and made decisions relating to Asina’s daily life. There is nothing before the Tribunal to indicate that there is any other person who has the parental responsibility for Asina.
Having regard to all these circumstances, the Tribunal has formed the view that there was a parent – child relationship between Abdurahman and his wife and Asina. The Tribunal therefore finds that Asina was a child of the review applicant’s brother and that she is, therefore, the review applicant’s niece and a relative.
Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision by Saladin and Asina.
No parental care – reg 1.14(b)
Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.
As noted above, there is limited documentary and contemporaneous evidence of the parents’ passing and the Tribunal shares the same concerned that were expressed by the delegate and the previous Tribunal. However, the Tribunal also acknowledges that in some circumstances, it is not possible to obtain documentary evidence that may otherwise be available and the Tribunal has formed the view that this is such a case. In particular, the Tribunal accepts that due to cultural and security issues in Ethiopia it would have been either impossible or extremely difficult for the visa applicants or the sponsor to obtain records of the parents’ deaths.
The Tribunal acknowledges that some documentary evidence of the deaths has been provided. For example, there is a hospital record relating to the mother. There is nothing before the Tribunal to indicate the document is not a genuine one, nor to contradict that evidence. The applicant also provided to the Tribunal statements from others who attended his brother’s funeral. Again, there is nothing to contradict that evidence. The Tribunal is mindful that there is more evidence before the present Tribunal than was before the delegate and the first Tribunal.
The Tribunal also places some weight on the fact that the local court had appointed the sponsor as the children’s tutor and administrator. The review applicant told the Tribunal that the court would have accepted the children as orphans on the basis of sworn testimony of others. There are before the Tribunal a number of statements from those who attended the court and gave evidence about the parents’ deaths.
On balance, the Tribunal accepts the review applicant’s evidence that the visa applicants’ parents have passed away. Despite the limited documentary evidence, the Tribunal places weight on the various statements from third parties attesting to the deaths of the parents, the hospital record for the mother, the appointment of a tutor / guardian for the children and the review applicant’s own evidence, which the Tribunal found to be credible. On the basis of the totality of that evidence, the Tribunal accepts that the visa applicants cannot be cared for by their parents because each of them is dead. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.
Best interests – reg 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 review applicant’s evidence to the Tribunal is that he has been providing financial support to the children for a number of years and evidence of such support is before the Tribunal. The review applicant also provided evidence of his financial circumstances. The Tribunal accepts that the review applicant and his partner have the capacity and the will to support the visa applicants. The review applicant also provided his AFP certificate which shows no adverse outcomes.
The Tribunal is satisfied that the visa applicant and his partner are committed to providing support to the visa applicants, as they had done for a number of years. The Tribunal is satisfied there are no compelling reason to believe the grant of the visas would not be in the best interests of the visa applicants. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.
The Tribunal is satisfied that two of the visa applicants are orphan relatives within the meaning of r. 1.14. They meet cl 117.211 and cl 117.221. For the reason set out above, the Tribunal is not satisfied that Roba meets the definition of ‘orphan relative’.
Conclusion
Given these findings, the appropriate course is to remit the two visa applications to the Minister to consider the remaining criteria for the visa in relation to two of the visa applicants. The Tribunal has decided to affirm the decision in relation to Roba.
decision
The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant and the third named visa applicant meet the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations; and
·cl 117.221 of Schedule 2 to the Regulations.
The Tribunal affirms the decision not to grant the second named visa applicant a Child (Migrant) (Class AH) visa.
Kira Raif
Senior Member