Ismail (Migration)

[2024] AATA 699

Ismail (Migration) [2024] AATA 699 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Noureddin Ismail

VISA APPLICANTS:  Miss Sundusa Ismail
Mr Abdi Woltai

REPRESENTATIVE:  Ms Kathleen Coffey

CASE NUMBER:  2114102

HOME AFFAIRS REFERENCE(S):          2017023578

MEMBER:Jason Pennell

DATE:30 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl 117.211 of Schedule 2 to the Regulations; and

·cl 117.221 of Schedule 2 to the Regulations.

Statement made on 30 January 2024 at 10.05am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – younger sibling – guardianship order – age at time of application and decision – original birth certificate, dated a month before application made, show applicant 16 at time of application – non-registration at time of birth common in rural areas – age at time of guardianship oreder consistent – now over 18 – best interests – dangerous and volatile conditions and vulnerability of young, single female orphan – second applicant nephew not able to be contacted and application withdrawn – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

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

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 9 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 18 October 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 and cl 117.221 of Schedule 2 to the Regulations.

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

   [1]     Decision record, Application ID 40629149901 dated 9 September 2021 at p.5; AAT file No 2114102 ID Doc: 11770706

5. On 14 December 2022 the review applicant filed with the Tribunal a Withdrawal of Application for Migration or Review Form withdrawing his application in respect of the second visa applicant, Mr Adbi Woltai. The review applicant’s evidence to the Tribunal was that he withdrew his application in relation to the second review applicant because he had gone missing and not able to be contacted. The review applicant maintained the application in relation to the first review applicant, Miss Sundusa Ismail (‘Sundusa’). 

6. The review applicant appeared before the Tribunal on 22 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the Sundusa. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.

7. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant has complied with cl 117.112 and cl 117.221 of Schedule 2 to the Regulations.

2. The review applicant’s evidence was that he was born in Bale Robe, Ethiopia on [Date] .[2] His evidence was that he is an ethnic Oromo. He arrived in Australia on 20 September 2007 as the holder of a [Specified] visa[3] and became an Australia citizen on 2 May 2012.[4]

   [2]     Review applicant’s Statutory Declaration dated 15 January 2024. AAT file No 2114102 ID Doc:11997232

   [3]    Ibid

   [4]     Australian citizenship certificate; Dept File No OSF2017023578 Doc ID: 9052980

3. The review applicant has lived in Australia permanently since his arrival in 2007. He is married and has two young children, a daughter, and a son.  He is currently employed as a Patient Services Assistant at the Austin Hospital, Heidelberg, Victoria,[5] a position he says he has held for approximately 15 years. Since his arrival in Australia, the review applicant has returned to Ethiopia on two occasions, being from 16 January 2013 to 5 September 2013 and 26 January 2015 to 11 March 2015.[6]

   [5]     Review applicant’s Statutory Declaration dated 15 January 2024. AAT file No 2114102 ID Doc:11997232

   [6]     Review applicant’s Statutory Declaration dated 15 January 2024. AAT file No 2114102 ID Doc:11997232; review applicant’s Movement Records, AAT file No 2114102 ID Doc:11746208

4. The review applicant’s evidence was that his parents are both deceased. His father died on 13 October 2007 and his mother died on 11 November 2008 and both are buried at the Robe Cemetery in Ethiopia. The review applicant provided the Tribunal with copies of his mother’s and father’s death certificates (with their English translations)[7] together with photos of their graves.[8] He was not able to state for the Tribunal precisely what his parents died from other than to say that they died of natural causes.

   [7]     Death certificates; AAT file No 2114102 ID Doc:1561957

   [8]     Grave photos; Dept File No OSF2017023578 Doc ID: 9052980

5. The review applicant’s evidence was that he has six siblings, including the first named visa applicant, Sundusa Ismail (Sundusa). The applicant’s brother, Jamal, and sister, Alfiya, passed away in or about 2012. The second named visa applicant, Mr Abdi Woltai, is the review applicant’s nephew, being the son of Alfiya. On 14 December 2022, the review applicant withdrew his application in relation to the second named visa applicant because he had disappeared and was unable to be located.    

6. The review applicant’s evidence was that Sundusa is the youngest of his siblings and was born in Bale Robe, Ethiopia on [Date]. DNA testing confirmed that the review applicant and Sundusa are related as biological siblings.[9]  The applicant provided the Tribunal with a copy of Sundusa’s Ethiopian birth certificate (with English translation)[10] which confirmed her date and place of birth. The review applicant’s evidence was that Sundusa had attended an informal Islamic school in Ethiopia, and she had not otherwise received any formal schooling in Ethiopia.  Sundusa’s evidence was that despite having attended an Islamic school she had not completed her schooling in Ethiopia.

   [9]     Genomic diagnostics 22 October 2019; Dept File No OSF2017023578 Doc ID: 9052980

   [10]  First visa applicant’s birth certificate; AAT file No 2114102 ID Doc:11997232

7. The review applicant’s evidence was that after their parents passed away, Sundusa lived with their brother, Feysal. However, when he married, Sundusa moved to live with their paternal uncle. She continues to live with her uncle.

8. The review applicant’s evidence was that in 2012 it was decided that he would become Sundusa’s guardian. As a result, he travelled to Ethiopia in 2015 when Sundusa was 15 years old to obtain a guardianship and administration order. The review applicant provided a copy of the guardianship order made by the Sinana District Court dated 28 February 2015.[11]

   [11]  Guardianship Order dated 18 February 2015; Dept File No OSF2017023578 Doc ID: 9052980

9. The review applicant has financially supported his family, particularly Sundusa since his arrival in Australia. He continues to provide financial support to Sundusa by transferring money to his cousin in Ethiopia who then gives it to her. His evidence to the Tribunal was that he would continue to support Sundusa in the event she is able to travel to Australia.  

10. Finally, it was the evidence of Sundusa and the review applicant that she has never married and is not currently in a relationship.

11. The review applicant’s evidence was that he currently speaks to Sundusa approximately twice per week. Given the security situation in Ethiopia, the review applicant claims that he is particularly concerned for Sundusa’s safety in Ethiopia. He claims that having lost her parents at a young age and as a young, single female she is particularly vulnerable.   The delay in finalising her application for an Orphan Relative visa has caused her considerable stress and anxiety.

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[12] or is not an orphan relative only because the applicant has been adopted by an Australian relative.[13] 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.[14] That is, the orphan relative definition requires that the applicant has not turned 18.[15]  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.[16]

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

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

   [14] Clause 117.221, Migration Regulations 1994, Schedule 2

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

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

2. ‘Orphan relative’ is defined in reg 1.14 of the Regulations[17], 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.[18] 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).[19]  In the present case, Mr Noureddin Ismail is the relevant Australian relative.

   [17]  Regulation 1.14, Migration Regulations 1994

   [18] Clause 117.111, Migration Regulations 1994, Schedule 2

   [19]  Regulation 1.03, Migration Regulations 1994

3. In this case, Sundusa birth date is [Date], making her 16 years of age at the time of the visa application. A copy of her original birth certificate[20] (together with an English translation)[21] was provided to the Tribunal. It’s noted that the birth certificate was issued on 30 August 2017, a month prior to the visa application being made.  The country information[22] 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.[23] Registration of children who are born in 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.[24]

   [20]   Birth certificate; AAT file No 2114102 ID Doc:11966136 Eb

   [21]   English translation of birth certificate; AAT file No 2114102 ID Doc:11997232

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

   [23]  Ibid

   [24]  Ibid

4. The review applicant’s evidence to the Tribunal was that in Ethiopia, especially in the Oromo region, identity documents such as birth certificates are not relied upon and are therefore not required within the local community. Sundusa’s life in Ethiopia has been restricted by the security situation in Ethiopia and the fact that she lost her parents at a relatively early age. As a result, she did not require and did not obtain any identity documents until prior to her visa application. The Tribunal notes that consistent with Sundusa’s birth certificate, the guardianship order notes that Sundusa was 15 years of age at the time the order was made, on 28 February 2015.[25]

   [25]  Guardianship Order dated 18 February 2015; Dept File No OSF2017023578 Doc ID: 9052980

5. Therefore, based on the review applicant’s evidence and the documentary evidence provided to the Tribunal, its accepts that Sundusa was 17 years of age at the time the visa application was made, as claimed.

6. Accordingly, the Tribunal finds that the first visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) has been met, and continues 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. Based on the documentation provided by the review applicant, including Sundusa’s birth certificate and the guardianship order, the Tribunal accepts that she was 17 years of age at the time of the visa application on 26 September 2017. Accordingly, reg 1.14(a)(i) was met at the time of application but does not continue to be met at the time of decision only because Sundusa is over the age of 18.

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 and Sundusa was that she has never been married and is not in a relationship. Based on the evidence provided by both the review applicant and Sundusa to the Tribunal, it accepts that she has not been married and is not in a relationship. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues 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.

2. The review applicant is an Australian citizen, having been granted Australian citizenship on 2 May 2012. His evidence was that Sundusa is the youngest of his siblings and was born in Bale Robe, Ethiopia on [Date]. DNA testing confirmed that the review applicant and Sundusa are related as biological siblings.[26]  Accordingly, based on the evidence presented to the Tribunal, it accepts that Sundusa is a relative of the review applicant within the meaning of reg 1.03 at the time of application and at the time of the decision.

   [26]  Genomic diagnostics 22 October 2019; Dept File No OSF2017023578 Doc ID: 9052980

3. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues 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: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

2. In this case it is claimed that both parents are dead. The review applicant’s evidence was that their father died on 13 October 2007 and their mother died on 11 November 2008. Both their mother and father are buried in Robe Cemetery in Ethiopia. Copies of their death certificates (with their English translations)[27] together with photos of their graves were provided to the Tribunal.[28] As referred to above, the review applicant’s evidence was that they died of natural causes.  

   [27]   Death certificates; AAT file No 2114102 ID Doc:1561957

   [28]  Grave photos; Dept File No OSF2017023578 Doc ID: 9052980

3. Based on the review applicant’s evidence to the Tribunal and the documentary evidence provided, the Tribunal accepts that Sundusa’s parents are 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)

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. In this case, the review applicant claims that he fears for the safety of Sundusa in Ethiopia due to the security situation in the country. As an ethic Oromo and as a female in Ethiopia, the review applicant claims that Sundusa is at risk of being seriously harmed if she remains in Ethiopia.

3. Country information[29]  reports that over the past five years, Ethiopia’s Oromia region has been plagued by conflict between the Oromo Liberation Army (OLA) and government security forces. 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[30] that the instability has allowed kidnappings for ransom to flourish unchecked, with numerous civilians being abducted. 

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

4. The Ethiopian government has continued to use military force in the Oromo 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[31] in August 2020 that since April 2018, the OLA, the armed splinter group of the Oromo Liberation Front (OLF), has killed more than 700 civilians in East and West Gujii zones and committed other atrocities against the civilians including torture, rape, sexual abuse, robbery vandalism and arson.[32] Abductions for ransom are common.

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

The government undertook a counter insurgency campaign in southern and western Oromia which resulted in serious human rights violations and abuses against local communities.[33] In March 2021, Eritrean army troops were sent to Oromia region to halt advances by the OLA. [34] It is reported[35] that arrests and summary executions have become commonplace in parts of Oromia as the Ethiopian security forces waged war on armed Oromo separatists. Civilians have been treated brutally with indiscriminate repression of local dissents. 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.[36] Despite a resolution in the Tigray region, it's reported that a fierce battle continues between the Ethiopian government forces and the OLA.[37]

[33]    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

[37]   The Africa Report, ‘Ethiopia’s Oromia region at risk of full-blown conflict amid stalled negotiations for peace’, 17 May 2023, Samuel Getachew; type="1">

The country information[38] reports that the situation in Ethiopia remains dangerous and volatile with considerable inter-ethnic tensions. It is feared by opposition parties that the Abiy government has turned against Oromo leaders, notably arresting Jawar on terrorism charges, and returned to imperial-style domination. It’s reported[39] that the action of the government against the opposing parties has been been an attempt to maintain control.

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

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.

In addition, as a female in Ethiopia, it’s claimed that there is a real chance Sundusa will be harmed if she remains in Ethiopia. It is reported[40] that gender-based violence is widespread in Ethiopia. The DFAT report[41] states that Ethiopian women face a high risk of domestic violence and sexual harassment. Sexual assault, including spousal rape, is common. It is reported that support services for women escaping domestic violence are insufficient overall.  

[40]  DFAT Country Information Report Ethiopia dated 12 August 2020 at p.34

[41]    ibid

Therefore, based on the available country information and in circumstances where she is a young single female, the Tribunal accepts and finds that it would be in the best interests of Sundusa for her to travel to Australia for the purpose of living with her brother, the review applicant. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

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.[42]

   [42]  EC v MIMIA [2004] FCA 978

2. As the visa applicant satisfies cl 117.211(a) of the Regulations, it is not necessary to make any finding in relation to cl 117.211(b) of the Regulations.

3. Given the findings above, cl 117.211 is met.

4. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, but only because the visa applicant has turned 18. It follows that cl 117.221 is met.

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

DECISION

1. The Tribunal remits the application for Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first named visa applicant meets 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.

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.