Visa Appeal

Casenote – Ahmed (Migration) [2022] AATA 2976

Mr Robsan Ahmed Umer and Miss Dureit Ahmed Umer (“the Applicants”) were Ethiopian citizens who applied for subclass 117 (Orphan Relative) visas in 2015. Their application was sponsored by their aunt, Ms Nagat Umer Ahmed (“the Review Applicant”).

This visa provides a pathway to permanent residency for orphaned children. It allows them to live, work, apply for Australian citizenship, and eventually even sponsor another relative for permanent residency.

Their initial application was refused, as the delegate found the information provided about the Applicants’ father was inconsistent. It was submitted that the Applicants’ father disappeared sometime between 1995 and 1996. It was further alleged that he had died in detention before 1998.

However, it was later stated by the Review Applicant that he had gone missing sometime between 2005 and 2006. As a result of these discrepancies, the delegate for the Minister was not satisfied that the Applicants were either orphans or that their father was missing.

Regulation 1.14 of the Migration Regulations 1994 states that a person is an “orphan relative” 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 another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; 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.

While the identity documents that were provided with the application satisfied reg 1.14(a), the evidence for reg 1.14 (b) was thin. There was little evidence provided, other than assertions, that the Applicants’ parents were either deceased, missing or permanently incapacitated.

After their initial application was refused by the Department of Home Affairs, the Review Applicant requested a review of the decision by the Administrative Appeals Tribunal (“the AAT”). The only dispute was whether their father was genuinely deceased, missing or incapacitated.

The AAT took into consideration a Court document from the East Hararge Zone Habro Court in Ethiopia which was submitted by the Review Applicant. Although poorly translated, this document purported that the Review Applicant had applied to be the children’s legal guardian in Ethiopia. This document recorded that the parents of the Applicants had disappeared or abandoned their children.

The Review Applicant made submissions to the AAT about the issue raised by the delegate for the Minister in his decision. She stated her father and brother were politically active in Ethiopia. She said that her father and her eldest brother had disappeared and died in detention sometime before 1998. She believed that her brother had moved away and started a family in 2005 or 2006. He later joined the Oromo Liberation Front and was now missing himself. She was only made aware of this after she had moved to Australia and reconnected with her family in Ethiopia.

This she claimed was the source of the discrepancies in the application.

It was noted by the AAT that around this time the Ethiopian authorities had started arresting opposition members.

There were no submissions that the Applicants’ father was permanently incapacitated, only that he had been missing for the past 16 years so was of unknown whereabouts. The issue that arose from his disappearance was the inevitable lack of documentary evidence, making the only available evidence available the testimony of witnesses. However, all evidence given by witnesses was accepted by the AAT as both consistent and plausible.

The AAT accepted that:

(1) the location of the Applicants’ parents was unknown;

(2) the Applicants are relatives of the Review Applicant;

(3) they were under 18 years of age at both the time of application and the time of decision; and

(4) there was no evidence to suggest that either were in a spousal relationship.

The matter was remitted from the AAT for reconsideration by the Department of Home Affairs with a direction that the Applicants met the criteria for a Subclass 117 (Orphan Relative) visa.

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