Yigzaw (Migration) 2018 AATA 3006

Tribunal: Senior Member Kira Raif

The Department of Immigration and Border Protection (The Department) refused to grant Child visas to two nationals of Ethiopia. The visa applicants applied for the Orphan Relative subclass of a child visa. They claimed to be the sisters of an Australian resident who was sponsoring them to come to Australia. They claimed their parents were both deceased and they wanted to come to Australia to live with their sibling.

A part of the criteria for an Orphan Relative visa is that the applicant is below the age of 18 at the time the visa application was made[1]. The Department refused the visas because they were not satisfied the applicants were orphan relatives of the sponsor for reasons including that they were not under 18. The sponsor applied to the AAT for a review of the decision.

The AAT was concerned with the evidence that was before it. The dates of birth the visa applicants provided in their visa application were different to dates that were provided by the sponsor in his own visa application and in an interview with a Departmental officer in 2011. At that time, the sponsor claimed that all of his siblings were over the age of 18. The sponsor gave various reasons for the inconsistency including errors in translation. There was also evidence that when the visa applicants were applying for the visas they had trouble identifying their own age and the age difference between them. The sponsor claimed that birth dates are of no importance in the Ethiopian culture and noted the difference between the Ethiopian and Gregorian calendars. The sponsor referred to the visa applicants’ limited English and generally difficult circumstances, which he claimed affected their evidence.

The sponsor told the AAT that his sisters’ precise dates of birth were unknown as birth registration did not occur but their baptising priest estimates dates of birth as 1998, 1999 and 2000. The sponsor claimed that there was a letter from the priest setting out his sisters’ dates of births and  other letters signed by the local authorities and social court, were used to issue passports to the sisters as proof of identity. The sponsor submitted that the passports should be considered as evidence of age.

The priest gave the AAT precise dates of the sisters’ baptisms via telephone. The AAT found this evidence problematic because it was based on the memory of the priest and the priest told the AAT that he could not recall other children or other baptisms. The AAT did not accept that the priest would recall the precise dates of baptism of the visa applicants while having no recollection of any dates or other details in relation to any other child he may have baptised. The sponsor claimed that the priest had a close connection to the children because the church looked after them and that was why he remembered their dates of baptism. He also claimed the priest was not well educated, from a rural area and had no experience providing evidence in this manner.

The AAT did not accept the evidence of the priest as truthful or probative and gave it no weight. The AAT found that the only reason the priest could ‘recall’ the dates of baptisms of the visa applicants was because he had been requested to specify these dates and his inability to answer other questions or recall other dates was due to the fact that he was unprepared to answer such questions.

The AAT acknowledged the passports that were provided as evidence of the visa applicants’ dates of birth but was not satisfied that the authorities who provided evidence for their issue had conducted any independent verification of the dates of birth other than relying on evidence from church authorities.

Ultimately, the AAT was not satisfied that there was probative or reliable evidence of the visa applicants’ dates of birth.

The AAT was not satisfied that the visa applicants were under the age of 18 at the time of the visa application and affirmed the original decision.

Read the full written decision on AustLII.