Abdi (Migration)

[2023] AATA 1695

Abdi (Migration) [2023] AATA 1695 (8 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sadiyah Abdi

VISA APPLICANTS:  Master Abdirahman Mohamed Abdullahi
Master Abdukadir Abdullahi Abdi

REPRESENTATIVE:  Ms Paghona Peggy Kerdo (MARN: 0801287)

CASE NUMBER:  1904485

HOME AFFAIRS REFERENCE(S):          2011092104 OSF2011092104

MEMBER:Brendan Darcy

DATE:8 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants 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.

Statement made on 08 June 2023 at 9:23am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – obtaining Somali death certificates – security situation in Somalia – Somali administrative capacity to record deaths – social media posts – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221, 117.311, 117.321; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.05, 1.12, 1.14

CASES

EC v MIMIA [2004] FCA 978
Nguyen v MIMA (1998) 158 ALR 639

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 18 December 2018 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 7 November 2011. 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. For the purposes of this decision, the review applicant will be referred to as the sponsor; the first named visa applicant will be referred to as the first applicant; and the second named visa applicant as the second applicant. 

4. 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.].

5. The delegate refused to grant the visas because the first named visa applicant (the applicant) did not meet cl 117.211 of Schedule 2 to the Regulations because the definition of Orphan Relative under r.1.14 is not met.

6. The review applicant appeared before the Tribunal on 9 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from both of the visa applicants and a witness, Mr Abdirahman Ali, who claim to be a family friend.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

8. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

10. The sponsor, Sadiyah Abdullahi Abdi, was born on 1 January 1992 in Kismayo in the Republic of Somalia (Somalia). She migrated to Australia on a AH Subclass 117 Orphan Relative visa in 2008 and was had Australian citizenship conferred on her on 2014.

11. On 7 November 2011, the sponsor lodged an application for Child (Class AH) Orphan Relative (Subclass 117) visas on behalf of the visa applicants.

12. A statutory declaration dated 13 October 2011 was attached to the visa application in which the sponsor claimed that the first applicant was born on 10 June 1995 in Somalia. and that his biological father, Mohamed Abdullahi Abdi, was killed in 2004 while his biological mother, Sadia Osman, was later killed. The sponsor claimed that she was the aunt of the first applicant as her half-brother had been the father of the first applicant.  (A half-sister and the sponsor shared the same biological father but had different biological mothers as a result of a polygamous marriage. There was a DNA (Deoxyribonucleic acid) test to establish their relationship in that earlier Subclass 117 visa application.)

13. The sponsor further claimed the second applicant to be born on 20 August 1995 in Somalia and the second applicant is her full biological brother. It was further claimed that their common biological father, Abdullahi Abdi Aden, died in 2004 of natural cause and that his mother, Dhakan Ahmed Ibrahim, had also died of natural causes in 2010.

14. They both claimed to have travelled to Kenya in 2011 and to have obtained refugee cards.

15. Statutory declarations were provided to the Department stating;

    ‘We do not have death certificates to confirm my parent's death as it is not possible to obtain these from Somalia due to the lack of a functioning government. In relation to Abdirahman Abdi, his father was my biological brother. Both of his parents have passed away. Again, I do not have death certificated to confirm this due to the inability to obtain such information from Somalia’.

16. A statement from the applicant’s representative stated;

    ‘Ms Abdi's father passed away in 2004 however there is no documentation to support this as it is virtually impossible to obtain such information from Somalia ... In relation to Abdirahman, Ms Abdi's nephew, both of his parents have passed away however we do not have death certificates to support this’.

17. The applicants were interviewed in Nairobi at the Australian High Commission on 27 June 2013. A copy of the transcript was provided to the parties’ representative. 

18. On 23 October 2014, the Department forwarded separate letters to the representative to each of the outlined adverse information outlined as invitation to comment on information relating to the Public Interest Criterion 4020 (PIC 4020). It is a requirement for the grant of a subclass 117 Orphan Relative visa that the PIC 4020 under Schedule 4 of the Regulations is satisfied. Specifically PIC 4020(1) requires no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officers of the Commonwealth, be a bogus document or information that is false or misleading in a material particular in relation to the application for visa or a visa held by applicants in the last 12 months before the current application was made.  

19. In summary, the PIC 4020 letters raised the following concerns:

    ·     During an interview, the second applicant provided an account that his father was accidently shot dead in 2004 while the sponsor (and her sister in an earlier account) had claimed that the father had a significant stroke three months prior to him passing away. This was considered to be ‘in complete contradiction’;

    ·     The sponsor had submitted a medical referral letter from the Médecins Sans Frontières (MSF) clinic based on Jamaame in southern Somalia presented to the Department. Dated 1 December 2010, it advised the second applicant’s mother was received by the clinic on 25 December 2010 and had been referred t to visit the hospital in Kismayu for further medical tests.  A further medical report dated 6 December 2020 from a hospital in Jamaame noting that she had passed away.

    ·     However, MSF had later discontinued operations in Somali due to security concerns and the Department was unable to verify the documents.

    ·     The Department noted the second applicant’s family was based in Kismayu and it was unusual that his mother travelled to 80 kilometres to have a medical examination in Jamaame., only to be referred to back to Kismayu, and that this was difficult to accept.

    ·     The visa applicants appeared to be coached in answering questions put to them during an interview and that they struggled to recall details of events when they were aged 9 or 10 years old, and the interview anticipated more detail given the significance of events;

    ·     The sponsor did not declare the second applicant as one of her siblings or half siblings (the first applicant’s father) in her original visa application in 2007. The Department said that it ‘would stand to reason that that she would declare all singles when noting the circumstances of her other family members on the form’;

    ·     The sponsor claimed the father of the first applicant had died of natural causes in July 2004 while first applicant claimed that the cause of death was a result of a stroke.  

    ·     Social media posts about the visa applicants indicated that they had been living and studying in Kenya since 1992 and that they had not arrived in Kenya in 2011. This was evidence of incorrect information.  

    ·     The Department requested documentation including as the visa applicants’ registration as asylum seekers with the UNHCR or the Kenyan Government. They denied having such registration. However, the Department would expect externally displaced Somalis to have formalised their status in Kenya it was a legal requirement to do so;

    ·     The first applicant during an interview with the Department could not explain how old he was while the sponsor originally provided the year of birth of second applicant as 1994 and then changed it to 1995. The first applicant claimed to have completed coursework at the Mombasa Polytechnic university College in 2021 while the second applicant appears to have claimed to have attended Kismayo University before moving to Kenya indicating further doubts to their true ages in order to meet the requirements of this subclass of visa; and

    ·     In statutory declarations, the accounts of the deaths of both sets of parents were vague and lacking in documentary evident that the visa applicants’ parents were either deceased, permanently incapacitated or their whereabouts were unknown.   

20. On 8 December 2014, the Department received a letter from the parties’ representative in which the family composition of the parties had been outlined to clarify any confusion. The representative also asked for the 2013 interview to be set aside as reliable evidence and that a new interview be conducted, and it indicated a Freedom of Information request had been made.

21. Below is an extract from the representative’s submission which specifically outlines the relationship of the visa applicants to the sponsor and the parentage of the visa applicants to address issues raised in the PIC 4020 letters.   

22. On Departmental file is a letter dated 2 February 2008, indicating that the sponsor who applied to be granted a Subclass 117 visa was provided an opportunity to prove her biological relation with her claimed half-sibling, Halima Abdullahi Abdi, born 12 February 1972. It was claimed they shared the same father but not the same mother. 

23. Also on department file is an email dated 29 November 2018, indicating that the head of documentation at Kenya’s Refugee Affairs Secretariat (or RAS: responsible for registering the identity of refugee claimants in that country) advised the Department that the serial numbers and names on submitted refugee cards pertaining to the visa applicants differ from those recorded by Kenyan authorities.

24. On 18 December 2018, a delegate from Australia’s Nairobi diplomatic mission who was acting on behalf of the Minister, notified the visa applicants of her decision to refuse to grant them Orphan Relative visas on the same date.

25. According to the decision record, the refusal decision was based on the lack of evidence to support to be orphans that the first applicant’s mother and father were deceased, permanently incapacitated or whereabouts unknown as required by clause 117.211 and 1.14(b). With regards to the second applicant, the delegate’s finding was based on the second applicant not being a dependent member of the same family unit as the first applicant pursuant to 117.311.

26. In considering whether the second applicant was a dependent on the primary applicant, the delegate found insufficient evidence to substantiate the claim that the secondary applicant is the dependent child of the family head at time of application – therefore not satisfying regulation 1.12(1)(b).

27. In turn, the delegate did not assess the application against the other criteria contained in Part 117-Child-Orphan Relative in Schedule 2 to the Regulations. The delegate also turned her mind to whether the visa applicants met the secondary criteria for either of the other two subclasses in Class AH and was not satisfied they meet the requirements for Subclass 101 Child visas or Subclass 102 Adoption visas.

28. The applicants validly applied to the Tribunal on 26 February 2019 (a decision record was attached to the application).

29. As mentioned above, the parties attended a scheduled hearing on 9 May 2023 to give evidence and present arguments as to the reasons the visa applicants the criterion set out in regulation 1.14. No further submissions were required at the end of the hearing.

30. There are no non-disclosure certificates attached to the visa applicants’ Departmental file.

    Are the visa applicants orphan relatives of an Australian relative?

31. The Tribunal notes that the delegate’s decision record made findings that second applicant not being a dependent member of the same family unit as the first applicant pursuant to clause 117.311 and 117.321 and regulations 1.03 and 1.05A.   Nowhere in the submitted application forms or statements is there a claim that the second applicant is the child, adoptive or otherwise, or reliant on the first applicant. At the time of application, the visa applicants were minors and of very similar age.

32. The Tribunal finds that delegate erred in making findings in relation to clause 117.311 and 177.321 in relation to the second applicant. There was no basis for proceeding on these grounds. Clearly, the forms and accompanying statements indicate the second applicant is applying for this subclass of visa on the basis of being the sponsor’s biological brother whose mutual parents are deceased at the time of application; that is, the primary criteria

33. Accordingly, The Tribunal will be proceeding to consider whether both the visa applicants satisfy clause 117.211 and 117.221 as the correct and preferrable approach in this de novo review application.

34. 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.

35. ‘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.  In the present case, Ms Sadiya Abdullahi Abid (DOB: 1 January 1992), is the relevant Australian relative on the basis she is the aunt of the first applicant and the sister of the second applicant.

    Overall credibility findings

36. To reach specific findings under regulation 1.14, the Tribunal has first considered whether the parities’ critical claims that the visa applicants are Orphan Relatives has been credibly put. 

37. Before proceeding with an overall credibility finding, the Tribunal makes the comment that the level of investigation by the departmental officials was not undertaken at a satisfactory standard. The Department was largely unresponsive to requests by the representative to meaningful engage with her and her clients throughout substantial period between lodgement and the delegate’s decision. For instance, the departmental file conceded that the interview conducted in 2012 could not be relied upon. When a request for a further interview with the visa applicants’ representative present was made in 2014, the officials proceeded to make a refusal decision without a further interview.

38. Furthermore, The delegate’s decision did not refuse the visa applicants Orphan Relatives on Schedule PIC 4020 grounds. Neither was the decision record explicit in the decision record that any of the credibility concerns in the PIC 4020 letters had been the basis for refusing the visa application. In determining whether parents of the first applicant were deceased, the delegate made findings that there is a lack of documentary evidence and placed no weight on the statutory declarations. In the relation to the second applicant, the delegate made finding on clause 117.311 and 117.321 without making findings about the limited documentary and other evidence provided to demonstrate the parents of the second applicant were deceased.

39. During the hearing, the Tribunal nonetheless used these PIC 4020 letters as the basis to discuss the relevant claims about the visa applicants’ status as Orphan Relatives. In this matter, the parities consistently said that there was no documentary or photographic evidence of death certificates, burials or funeral ceremonies pertaining to the deceased parents of the visa applicants. The available evidence included witness statements, oral evidence, and the documentary evidence pertaining to the death of the second applicant’s mother, namely two 2010 health records from MSF in Jamaame.

40. Of particular concern to the Department had been that the father of the first applicant was not included in the sponsor’s 2007 application for an Orphan Relative visa when she was required to outline all other siblings, including half siblings. At the hearing, the parties have argued that it would be unfair to place the onus of burden on the sponsor given she was a minor at the time and that the application did not include her participation. Otherwise and understandably, the omission in the earlier application had been an oversight and had not been deliberately omitted to mislead any decision makers. On balance, the Tribunal is persuaded that it would not be proportionated to rely on this omission by finding the explanation lacked credibility.

41. Also of credibility concern for the Department was the apparent inconsistency about the death of the first applicant’s father in 2004, whereby the first applicant claimed the death to be caused by a shooting while the sponsor claimed it to be natural causes. In a December 2014 submission to the Department, the parties’ representative explained to the Department had misunderstood the relationships and provided a family tree indicating that the first applicant’s claim that his father was killed was the correct information. During the hearing, the second applicant and the sponsor confirmed that his father had been killed and that he did not die of natural causes.  The Tribunal is persuaded that there is no consistency provided by the first applicant and the sponsor in relation to this specific matter.

42. The Tribunal has also considered whether there are any substantial reasons for it to believe that the MSF documents pertaining to the health and death of the second applicant’s mother for the reasons outlined in the PIC 4020 letters.

43. According to the MSF website which has a timeline of the NGO’s activities in Somalia, MFS closed all its health care clinics and other in August 2013 after abductions and murders of MSF staff. Prior to that, MSF working in serval locations, including Jamaame and Kismayo with few interruptions between 191 and 2013.  In 2010 – when it is claimed the second applicant’s mother died, the website indicates that MSF operated a health service, a nutritional programme and outreach activities from 2007. It also indicates that the MSF had a presence in Kismayo up to early 2008.[1] The Tribunal has been able to locate some country information in English that the Kismayo General Hospital continued to operate despite disruptive localised conflicts or under Al Shabaab controlled the port town of Kismayo and who refused vaccinations and chlorination of water. The Tribunal concurs with the PIC 4040 letters that it would be unusual for medical professionals in Jamaame to make referrals to Kismayo. On the other hand, given the security situation in Kismayo was volatile and precarious, it would not be unusual to seek out health services outside of Kismayo at neighbouring Jamaame.

    [1] A timeline of MSF in Somalia, MSF(English) 2 November 2013, type="1">

44. Understandably, the sponsor was unable to provide much detail about the mother’s circumstances, which is not surprising since she was not in Somalia at the time. Likewise, Médecins Sans Frontières anticipating the visa applicants to recall even significant instances about their parents in any great detail given they were young minors and largely reliant on family members about such incidents would be unreasonable.

45. As discussed in the hearing, the submitted health services documents were handwritten and given DFAT assesses that document fraud is highly prevalent in Somalia, there has been no verifiable method to authentic documentation and no reliable government-held registers to compare against.  Contrary to the representative’s protestations, it is not difficult to understand how a handwritten certificate from MSF could be doubted. The question is whether there are are any other reasons to consider it credible. On this occasion, the parties have sufficiently demonstrated the MSF documentation to be genuine.

46. Notwithstanding the health services records pertaining to the second applicant’s mother, there is an overall absence of documentary evidence that second applicant’s father has passed away, as claimed, and that the second applicant was an orphan at the time of application. Similarly, there is an absence of documentary evidence that both of the first applicant’s parents have passed away.

47. Notionally, under the terms of the Civil Registry Act 2011 in Somalia, all deaths have to be registered within 7 days of the death. No fees are charged for registering deaths or for the issuing of death certificates.[2] However DFAT reports that there is no systematic birth and death registration in Somalia: UNICEF reported that only 3 per cent of births between 2005 and 2012 were registered. Most Somalis do not have valid identity documentation due to a lack of government capacity to issue documents and access restrictions for rural communities who are isolated from government offices or cannot afford travel to main cities to register. Fraudulent documentation can take the form of fake documents, or genuine documents that have been obtained on the basis of fraudulent information.

    [2] UNICEF, ‘Somalia – Death Registration’, no date

48. From 1991 until 2012, Somalia was generally considered a failed state. In 2012, the Federal Government of Somalia (FGS) was formed. While the government has made some progress in state-building, the political, security and humanitarian situation remains complex and unstable and the government’s capacity to provide for the needs of Somalis remains low.

49. With regards to the second applicant’s mother being killed in an explosion in Mogadishu, the capital of Somalia, the Tribunal notes the security situation in Mogadishu has been volatile for a considerable time. Prior to October 2017, the situation had improved somewhat due to the formation of a Mogadishu stabilisation force that led to a decrease in the number of Al Shabaab attacks. Al Shabaab, a major armed Islamist group claiming which has controlled and currently controls significant amounts of territory in south and central Somalia, but also has an ability to operate or launch attacks in other parts of the country, such as Mogadishu.

50. On balance, the Tribunal accepts that the general understanding that the administrative capacity of Somali authorities to record births, marriages and deaths has been weakened by decades of conflict and this provides a reasonable explanation for a lack of corroborative documentary evidence. Noting the Tribunal’s findings about the abovementioned MSF records submitted as evidence as the second applicant’s mother deceased to be genuine and places considerable weight on this indicating that the parties have presented generally credible and reliable claims about the visa applicants for the purposes of r 1.14.

51. With regards to the delegate’s concerns arising from information gathered from social media posts on Facebook, it is not altogether ’nonsensical’ to make adverse credibility findings when that information conflicts with other information provided. The Tribunal noted that the representative claimed that ‘it is well known that Facebook will not allow anyone under 18 to open Facebook pages’, and that it had been older friends of the visa applicants to launch their social media identities on their behalves. It is not a statement of fact that Facebook restricts all minors from Facebook as a simple internet search will take any curious persons to the Facebook policies page indicant that Facebook requires everyone to be at least 13 years old before they can create an account (in some jurisdictions, this age limit may be higher).

52. There is also the suspicious element in not providing the Department with accurate refugee documentation issued by the relevant authority in Kenya. As paragraph 22 outlined, the visa applicants later provided copies of their cards and departmental correspondence indicated the identification numbers on the cards did not match with the names of the cardholders on official Kenyan records.

53. However, in relation to both these elements, the visa applicants provided reasonable, albeit not entirely satisfactory, explanations. The social media identities were boastful exaggerations about the visa applicants’ educational attainment while residing and working in Kenya to attract better work and social connections. The refugee cards, it was explained, were supplied by the smugglers and the visa applicants assumed them to be legitimate and had not problems to date with presenting them to the authorities to date. On this occasion, the Tribunal assesses that it would be disproportionate to place too much weight on such irregularities that are not strictly relevant or related to the critical issue of whether the visa applicant’s parents were not providing care at the time of application or the time of decision.   

54. Overall, the Tribunal is unable to locate sufficient reasons for it to conclude that the parties have provided any outrageously implausible or fanciful explanations arising from these credibility concerns. Neither is it satisficed that any bogus documents or information that is wilfully false or misleading about the identity and age of the visa applicants, their marital status or relationship with the sponsor or the circumstances relating to the deaths of the visa applicants’ parents, were not reliably put.

55. Based on this overall credibility findings about the materially relevant claims in this matter, the Tribunal proceed to make the following findings that each of the visa applicants is an orphan relative of an Australian relative at the time of application. For the same reasons, the Tribunal correspondingly finds that each of the visa applicants is an orphan relative of an Australian relative at the time of this decision.

    Age – reg 1.14(a)(i)

56. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

57. At the time of application - 7 November 2011, both the first and second applicants were aged 16.  Accordingly, reg 1.14(a)(i) was met at the time of application in relation to both visa applicants.

58. At the time of decision, both the first and second applicants were aged 27 years of age.

59. Accordingly, reg.1.14(a)(i) does not continue to be met at the time of decision in relation to both the visa applicants, but only because the visa applicants have turned 18.

    Spouse or de facto partner – reg 1.14(a)(ii)

60. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.

61. Both visa applicants claimed never to have married, engaged to be married or to have lived in a de facto relationship, either at the time of application or at the time of decision,

62. With no evidence to the contrary, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision in relation to each of the visa applicants.

    Relative – reg 1.14(a)(iii)

63. 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.

64. As mentioned above, the first applicant claims to be the nephew of the sponsor, an Australian citizen since 2014. Furthermore, it is claimed that the second applicant’s biological father and mother were in common with the sponsor. Therefore, the first applicant claimed to be the sponsor’s nephew.

65. The Tribunal notes the sponsor offered to undertake DNA testing, but Department did not request such testing throughout the lengthy period it took to assess this application of Orphan Relative visas.

66. Earlier DNA testing confirmed the half sibling relationship between the sponsor and her own sponsoring relative who is also the aunt of the first applicant. According to the decision record, the delegate did not make adverse findings about the visa applicants being relatives of the sponsor, or that the sponsor was not an Australian permanent resident at the time of application or not usually resident in Australia. 

67. While it is open to the Tribunal to request DNA testing as medical evidence of the visa applicants are relatives of the relevant Australian citizen in this matter, as the delegate did not make any adverse findings on this matter, the Tribunal has proceeded without one.

68. Based on the Tribunal’s overall credibility finding and with no evidence to the contrary, the Tribunal finds that the first applicant is the nephew of the sponsor, and the second applicant is the brother of the sponsor.

69. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision in relation to each of the visa applicants.

    No parental care – reg 1.14(b)

70. 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.

71. The circumstances of the deaths of the parents of both the visa applicants which has been vague and largely unsubstantiated and undocumented, is outlined above. Based on the abovementioned overall credibility finding, the Tribunal accepts the following at the time of application:   

    ·     The father of the first applicant died from a firearm in 2004;

    ·     The mother of the first applicant killed in explosion 2010;  

    ·     The father of the second applicant died in 2004 from natural causes; and

    ·     The mother of the second applicant died in 2004 from natural causes.

72. It follows from these findings that the visa applicants cannot be cared for by either of their parents because each of them is dead.

73. 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)

74. 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.

75. There is no evidence before the Tribunal that there are compelling reasons to believe that the grant of the visa would not be in the best interests of each applicant. In their oral testimony, both applicants stated they were living precariously in Kenya as Somali nationals and that they wish to join the sponsor, in Australia.

76. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision in relation to each of the visa applicants.

77. Given the findings above, cl 117.211(a) is met.

    Has the applicant been adopted by the Australian relative?

78. 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 in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

79. It is not necessary to make findings of part (b) of clause 117.211 as the visa applicants satisfy part (a) of the same clause.

80. Conclusion

81. Given the findings above, as part (a) of cl 117.211 is met, the criterion for cl 117.211 is also fulfilled.

82. The Tribunal finds that the visa applicants do not continue to satisfy the criterion in cl 117.211, but only because the visa applicants have turned 18. It follows that cl 117.221 is met.

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

    DECISION

84. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants 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.

    Brendan Darcy
    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.