Miesso (Migration)

Miesso (Migration) [2020] AATA 5582 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Game Miesso
VISA APPLICANT:  Miss Beredu Game Edo
CASE NUMBER:  1717633
HOME AFFAIRS REFERENCE(S):          OSF2016/047142
MEMBER:Helena Claringbold
DATE:27 October 2020
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 27 October 2020 at 4:11pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Subclass 102 (Adoption) – child-parent relationship – sponsor claims to be biological father of visa applicant – customary adoption – accepted by the elders and culturally became a member of sponsor’s family – availability of formal adoption in Ethiopia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), r 1.04; Schedule 2, cls 101.211, 101.221, 102.211
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

On 16 August 2016, Miss Beredu Game Edo, the visa applicant, applied for a Child (Migrant) (Class AH) visa. The application was based on the visa applicant’s relationship with Mr Game Miesso, the sponsor and review applicant.
On 19 June 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant met clcl.101.211 and cl.101.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 10 August 2017, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the sponsor.
On 7 October 2020, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
The issue in this case is whether the visa applicant is the child or adopted child of the sponsor.
BACKGROUND ON THE EVIDENCE
The visa applicant was born in 2002 in Dera, Ethiopia. At the time of the visa application, she was 14 years old. Her mother was declared to be Ms Fayo Namo and her father was declared to be the sponsor. She lives in Ethiopia.
The sponsor was born in 1974 in Arsi, Ethiopia. On 22 December 2009, he married Ms Sofia Geleto Anota. On 10 July 2011, he entered Australia as the holder of a Subclass 309 partner visa. On 22 June 2014, Ms Anota and the sponsor divorced. There are no children from this relationship. On 18 November 2015, he was granted Australia citizenship. He declared that he is in a spousal relationship. He also declared having four children from other relationships. Three of the children migrated to Australia in 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time of the visa application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). As explained to the sponsor at the Tribunal hearing, the Tribunal will consider whether the visa applicant meet the criteria for the grant of either of these visas. In this case, no claims have been made in respect of Subclass 117 (Orphan Relative) visa.
Subclass 101 (Child) Visa
Clause 101.211 of Schedule 2 to the Regulations requires that at the time of application
(1) The applicant:
(a) is a dependent child of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) an eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25; and
(c) either:
(i) is:
(A) the child (other than an adopted child); or
(B) the step-child within the meaning of paragraph (b) of the definition of step-child;
of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or
(ii) was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
(2) Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
Clause 101.211 must continue to be met at the time of decision cl.101.221 of Schedule 2 to the Regulations.
Child-parent relationship
At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one cl.101.211(1)(c).
Since 1 July 2009, ‘child’ has been defined by s.5CA of the Act. The definition recognises a broader range of parent-child relationships than previously, including children conceived through artificial conception procedures such as invitro fertilisation and children born under certain surrogacy agreements which are recognised under a prescribed State/Territory law as per the Family Law Act 1975. It is therefore no longer appropriate to refer to ‘natural’ children, because, under the s5CA definition, children may have no biological links to their legal parents.
Section 5CA defines ‘child of a person’ as:
(1)  Without limiting who is a child of a person for the purposes 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.
(2)  The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3)  Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
The visa applicant is citizen of Ethiopia, currently residing in Ethiopia. At the time of the visa application, 16 August 2016, she was 14 years old. The sponsor lives in Australia. [Information redacted]. The sponsor’s brother told the Tribunal that the sponsor is a great father and supports the visa applicant and he would like them to be reunited.
On the evidence, the Tribunal is not satisfied that the visa applicant is the biological child of the sponsor. There is no evidence that the visa applicant is the stepchild of the sponsor or that the visa applicant was conceived through artificial conception procedures such as invitro fertilisation or born under certain surrogacy agreements which are recognised under a prescribed State/Territory law as per the Family Law Act 1975. The Tribunal is not satisfied that the visa applicant and the sponsor have a child-parent relationship. Therefore, the visa applicant does not meet cl.101.211(1)(c)(i) of Schedule 2 to the Regulations.
Has the visa applicant been adopted as recognised with the Laws of Australia?
There is no evidence that the visa applicant has been adopted as recognised in accordance with the laws of a State or Territory of Australia. Therefore, the applicant does not meet r.1.04(1)(a) of the Regulations.
Has the visa applicant been formally adopted by the sponsor?
Regulation 1.04 of the Regulations provides the definition for adoption:
(1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:
(a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children r.1.04(1)(a)); or
(b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised r.1.04(1)(b); or
(c) other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption r.1.04(1)(c).
On 11 June 2017, the sponsor stated the following. He will be the visa applicant’s father for as long as he lives. According to Ethiopian law he is her father and he has legal responsibility to care for her and will support her financially and emotionally.
The sponsor provided information to support his claim that he adopted the visa applicant as follows:
·A document issued by the Limu and Bilbilo Woreda Court dated 2 February 2016. The court order stated that the petitioners (Mr Game Edo and Mrs Fayo Namo)
‘gave birth to the child Beredu Game on 12 January 2002 without formal marriage and they are the biological parents of the child who is raised by her biological mother until today. As per the adoption contract agreement entered into and concluded between the petitioners the child is relinquished to the 1^st petitioner (the sponsor) as they live apart in separate countries and the court has confirmed that their pleading is substantiated with testimonies of character witnesses and approved the adoption contract made between the petitioners on the above date in accordance with the Oromia Family Law No. 69/95 and 83/96 article 266 that the 1st petitioner, Mr Game Edo is the adopter of the child.’
·A letter dated 20/02/20 cannot be read by the Tribunal. The letter certifies that the visa applicant is a student at their school and her father is the sponsor and he has been paying her school fees since she was admitted in the Meji Sibeleni Elementary School as a student.
·A translated letter dated 5 January 2020 from the ‘Arsi zone Administration dodota woreda’ ‘Tero desta farmers association’ ‘Giving Certificate’. It stated that the sponsor was in Ethiopia in July 2017 and applied for the address of Mrs Fayo Namo. However, they have been unable to find it and her residential address is unknown.
As detailed in the delegate’s decision record the Department’s Nairobi Post’s knowledge of adoption processes in Ethiopia is that the following must occur in order for formal adoption to be considered legal.
·A court order from the Regional Court;
·Approval from the Ministry of Women, Children and Youth Affairs;
·A court order from the First Instance Court of Ethiopia or the Supreme Court of the relevant district.
The delegate stated that, there is no document to demonstrate that the visa applicant’s adoption was approved by the Ministry of Women, Children and Youth Affairs and that it was processed initially by a Regional Court and First Instance Court in the region where the visa applicant resides.
Information before the Tribunal is as follows:
The legal requirements for formal adoption in Ethiopia are set out in Chapter 10 of The Revised Family Code of Ethiopia, articles 180-196.[1] Limited information on the issuance of documentary evidence indicates that the Federal First Instance Court, the High Court in Addis Ababa, the highest court in each region and lower courts may variously issue documents approving a formal adoption or endorsing an adoption arrangement put in place by relatives.[2]
Pursuant to article 190 of The Revised Family Code, ‘[t]he agreement of adoption shall be made between the adopter and the guardian of the adopted child’. Article 194 provides that ‘[a]n agreement of adoption shall be of no effect unless it is approved by the court’, and that ‘[b]efore approving the agreement of adoption, the court shall decisively verify that the adoption is to the best interest of the child’. It also sets out the matters the court shall take into consideration before approving an adoption agreement.[3]
In 2006, the Australian Department of Foreign Affairs and Trade (DFAT) provided advice on the formal adoption process in Ethiopia, stating that endorsement of an adoption is by the High Court in Addis Ababa or ‘by the highest court in the region if the child resides in a rural area’:
The process involves the adoptive parent/s obtaining approval from the Department of Women and Children Affairs to adopt the child before it is endorsed by the High Court in Addis Ababa (or by the highest court in the region if the child resides in a rural area). Once the Court has endorsed the proposed adoption, it will issue a formal adoption order and certificate... [4]
DFAT further advised that ‘customary adoptions or custody arrangements are culturally acceptable’ and may be ‘given sanction by lower courts which simply endorse arrangements… put in place by relatives’:
Customary adoptions are often given sanction by lower courts which simply endorse arrangements that have been mutually put in place by relatives. While in such cases it can be argued that the best interests of the child are being served, it should be noted that the parental links and rights are never formally severed... In order for an adoption to be valid and legal, it must be approved by the Department of Women and Children Affairs and endorsed by the High Court.[5]
[1] The Revised Family Code, Proclamation No. 213/2000, Federal Democratic Republic of Ethiopia, 4 July 2000, CIS8BEF434427
[2] DFAT Report No.570, 6 December 2006, cited in Country Advice ETH38066, Migration Review Tribunal and Refugee Review Tribunal, 17 February 2011, CR154B690632
[3] The Revised Family Code, Proclamation No. 213/2000, Federal Democratic Republic of Ethiopia, 4 July 2000, Article 225, CIS8BEF434427
[4] DFAT Report No.570, 6 December 2006, cited in Country Advice ETH38066, Migration Review Tribunal and Refugee Review Tribunal, 17 February 2011, CR154B690632
[5] DFAT Report No.570, 6 December 2006, cited in Country Advice ETH38066, Migration Review Tribunal and Refugee Review Tribunal, 17 February 2011, CR154B690632
The Tribunal discussed with the sponsor the information about the process for adoption in Ethiopia that involves the adoptive parent/s obtaining approval from the Department of Women and Children Affairs to adopt the child before it is endorsed by the High Court in Addis Ababa (or by the highest court in the region if the child resides in a rural area). Once the Court has endorsed the proposed adoption, it will issue a formal adoption order and certificate. [6]
[6] DFAT Report No.570, 6 December 2006, cited in Country Advice ETH38066, Migration Review Tribunal and Refugee Review Tribunal, 17 February 2011, CR154B690632
The sponsor told the Tribunal the following. In 2013, he was told by a family member that the visa applicant’s mother claimed that he is the father of the visa applicant. Prior to this, he had not known anything about the visa applicant. In 2014, he met the visa applicant. She was accepted by the elders and culturally became a member of his family. He then began providing for the visa applicant and moved her to live with his cousin where his other children were living; up until that time she had lived with her mother. In 2016, he went to court to obtain responsibility for the visa applicant. The visa applicant does not know about the court process. After the court process the visa applicant’s mother could not be found.
The sponsor stated the following. He didn’t go through the process of obtaining approval for the adoption from the Department of Women and Children Affairs or the endorsement by the High Court, because he believed that the visa applicant was his biological child. He believed that all he needed to do was have the responsibility for the visa applicant transferred to him, instead of her mother.
At the time of application, there is no evidence before the Tribunal that the visa applicant was adopted after approval from the Department of Women and Children Affairs was obtained or that is was endorsed by the High Court in Addis Ababa (or by the highest court in the region if the child resides in a rural area) or that an adoption certificate was issued by the relevant court. As a result, the Tribunal is not satisfied that the visa applicant is the adopted child of sponsor as defined by r.1.04(1)(b).
Has the visa applicant been customarily adopted by the review applicant?
Regulation 1.04(2) states that:
(2) For the purposes of paragraph 1.04(1)(c), arrangements are taken to be in the nature of adoption if:
(a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
(b) the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
(c) the Minister is satisfied that:
(i) formal adoption of the kind referred to in paragraph (1)(b):
(A) was not available under the law of the place where the arrangements were made; or
(B) was not reasonably practicable in the circumstances; and
(ii) the arrangements have not been contrived to circumvent Australian migration requirements.
The sponsor’s evidence is that in 2014 the visa applicant was accepted by the elders and culturally became a member of his family. He then began providing for the visa applicant and moved her to live with his cousin where his other children were living; up until that time she had lived with her mother. In 2016, he went to court to obtain responsibility for the visa applicant. However, there is clear evidence before the Tribunal that formal adoption is available in Ethiopia. This was discussed with the sponsor at the Tribunal hearing and he accepted and recognised that formal adoption is available in Ethiopia. He accepted that he didn’t pursue formal adoption because at the time he went to court because he believed the visa applicant to be his biological child.
As a result, the Tribunal is not satisfied that formal adoption was not available under the law of the place where the arrangements were made. Therefore the visa applicant does not meet 1.04(1)(c).
As a result of the above, at the time of application the visa applicant does not meet cl.101.211(1)(c) of Schedule 2 to the Regulations.
Therefore, the visa applicant does not meet the requirements for the grant of a Subclass 101 (Child) Visa.
The Tribunal having considered the evidence individually and completely, for the reasons above, considers that the criteria for the grant of a Subclass 101 are not met.
The Tribunal will now consider whether the visa applicant meets the requirements for the grant of a Subclass 102 (Adoption) visa.
Subclass 102 (Adoption) visa
Clause 102.211 of Schedule 2 to the Regulations requires that at the time of application:
(1)  The applicant meets the requirements of subclause (2), (3), (4) or (5).
(2)  An applicant meets the requirements of this subclause if:
(a)  the applicant has not turned 18; and
(b)  the applicant was adopted overseas by a person who:
(i)  was, at the time of the adoption, an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen; and
(ii)  had been residing overseas for more than 12 months at the time of the application; and
(c)  the Minister is satisfied that the residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and
(d)  the adoptive parent has lawfully acquired full and permanent parental rights by the adoption.

As discussed above, the Tribunal has determined that the visa applicant was not adopted by the sponsor.
There is no evidence that the visa applicant meets any of the alternative criteria for the grant of the visa in cl.102.211(1), (3), (4) or (5).
The Tribunal, having considered the evidence individually and completely, for the reasons above, considers that the visa applicant does not meet cl.102.211 of Schedule 2 to the Regulations.
For the reasons above, the criteria for the grant of a Subclass 102 are not met.
There is no evidence before the Tribunal that the visa applicant meets the criteria for the grant of a Subclass 117 Orphan Relative visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Helena Claringbold
Member

DFAT Report No.570, 6 December 2006, cited in Country Advice ETH38066, Migration Review Tribunal and Refugee Review Tribunal, 17 February 2011, CR154B690632
DFAT Report No. 1467, 17 January 2013, cited in Country Advice ETH41523, Migration Review Tribunal and Refugee Review Tribunal, 22 January 2013, CRAD81550102

[2020] AATA 5582

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice