Alikhil (Migration)

Case •

[2023] AATA 3475

•

30 August 2023

Alikhil (Migration) [2023] AATA 3475 (30 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nazli Alikhil

VISA APPLICANTS:  Master Abuzar - applicant 1
Miss Haleema  - applicant 2
Miss Tayyiba    - applicant 3
Master Owais   - applicant 4

REPRESENTATIVE:  Mr Robert Brandon Charles Grahame Yeomans

CASE NUMBER:  2216180

HOME AFFAIRS REFERENCE(S):          CLF2020/21603

MEMBER:Peter Emmerton

DATE:30 August 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the four named visa applicants, (1, 2, 3, 4) meet the following criteria for a Subclass 117 (Orphan Relative) visa:

· cl 117.211 of Schedule 2 to the Regulations

· cl 117.221 of Schedule 2 to the Regulations

Statement made on 30 August 2023 at 1:03pm           

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – paternal aunt of the applicants – visa applicant has not turned 18 – substantial body of additional evidence to strongly suggest or demonstrate the familial connection between the 4 visa applicants and the review applicant – applicant’s father is deceased – death certificate provided – best interests of children – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, rr 1.03,1.14, Schedule 2, cls 117.211,117.221

CASES
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 17 October 2022 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, (1, 2, 3, 4) applied for the visas on 24 June 2020. 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. Cl 117.211 requires that the applicants are orphan relatives of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen

  4. The delegate refused to grant the visas because the visa applicants did not meet cl 117.211 of Schedule 2 to the Regulations because they were not satisfied that the evidence presented was sufficient to demonstrate the claimed relationship with the review applicant Mrs Nazli Alikhil as their paternal aunt.

  5. The review applicant appeared before the Tribunal on 30 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant 1 and the review applicant’s husband.

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

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

  9. The issue in the present case is whether the applicants meet cl 117.211 of schedule 2 to the Regulations and cl 117.221 of Schedule 2 to the Regulations because the Tribunal is satisfied that the applicants are orphan relatives as defined in Regulation 1.14.

  10. The Tribunal found that all of the evidence presented during the hearing was done so in an apparently open, honest and cooperative manner with no obfuscation.

  11. The Tribunal has carefully read and considered the following evidence provided to the Department.

    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • 117 - ABUZAR ( 01.01.2005 ).PDF
    • IMMI Ackn of Valid Application - Post Lodgement - CLF2020 21612 - 1440641072 - HALEEMA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • 117 -HALEEMA ( 03.06.2007 ).PDF
    • IMMI Ackn of Valid Application - Post Lodgement - CLF2020 21631 - 5639938 - TAYYIBA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • 117- TAYYIBA ( 03.05.2010 ).PDF
    • IMMI Ackn of Valid Application - Post Lodgement - CLF2020 21633 - 1570640919 - OWAIS.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • 117 - OWAIS ( 03.05.2013 ).PDF
    • CLF2020-21603_FORM.PDF
    • CLF2020-21603_OTHER.PDF
    • CLF2020-21603_PHOTO_1.JPG
    • CLF2020-21603_POI.PDF
    • CLF2020-21612_FORM.PDF
    • CLF2020-21612_OTHER.PDF
    • CLF2020-21612_PHOTO_1.JPG
    • CLF2020-21612_POI.PDF
    • CLF2020-21631_FORM.PDF
    • CLF2020-21631_OTHER.PDF
    • CLF2020-21631_PHOTO_1.JPG
    • CLF2020-21631_POI.PDF
    • CLF2020-21633_FORM.PDF
    • CLF2020-21633_OTHER.PDF
    • CLF2020-21633_PHOTO_1.JPG
    • CLF2020-21633_POI.PDF
    • s56 Request for More Information - CLF2020 21603 - 700638752 - ABUZAR.PDF
    • s56 Request for More Information - CLF2020 21603 - 700638752 -Request Checklist and Details.pdf.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • DNA Letter - CLF2020 21603 - 700638752 - ABUZAR.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • s257A (s40) Requirement to Provide Biometrics - CLF2020 21603 - 700638752 - ABUZAR.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • Form 1243i Your personal identifying information.PDF
    • s56 Request for More Information - CLF2020 21633 - 1570640919 - OWAIS.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • s56 Request for More Information - CLF2020 21633 - 1570640919 -Request Checklist and Details.pdf.PDF
    • s257A (s40) Requirement to Provide Biometrics - CLF2020 21633 - 1570640919 - OWAIS.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • Form 1243i Your personal identifying information.PDF
    • DNA Letter - CLF2020 21633 - 1570640919 - OWAIS.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • DNA Letter - CLF2020 21631 - 5639938 - TAYYIBA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • s56 Request for More Information - CLF2020 21631 - 5639938 - TAYYIBA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • s56 Request for More Information - CLF2020 21631 - 5639938 -Request Checklist and Details.pdf.PDF
    • s257A (s40) Requirement to Provide Biometrics - CLF2020 21631 - 5639938 - TAYYIBA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • Form 1243i Your personal identifying information.PDF
    • DNA Letter - CLF2020 21612 - 1440641072 - HALEEMA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • s56 Request for More Information - CLF2020 21612 - 1440641072 - HALEEMA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • s56 Request for More Information - CLF2020 21612 - 1440641072 -Request Checklist and Details.pdf.PDF
    • s257A (s40) Requirement to Provide Biometrics - CLF2020 21612 - 1440641072 - HALEEMA.PDF
    • Form 1243i Your personal identifying information.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Migration Agent).HTML
    • DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 21631.MSG
    • CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 21631 [S.MSG
    • CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 21631 [S.MSG
    • CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 21631 [S.MSG
    • HPRM Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • HPRM Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • HPRM Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • HPRM Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 2163.MSG
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 2163.MSG
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 2163.MSG
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 2163.MSG
    • DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • CM DNA testing - CLF2020 21603, 21612, 21631, 21633.EML
    • Automatic reply DNA testing - CLF2020 21603, 21612, 21631, 21633.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21633.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21603.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21631.EML
    • CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21603.EML
    • Re DNA testing - CLF2020 21603, 21612, 21631, 21633.EML
    • Re DNA testing - CLF2020 21603, 21612, 21631, 21633.EML
    • Re DNA testing - CLF2020 21603, 21612, 21631, 21633.EML
    • Re DNA testing - CLF2020 21603, 21612, 21631, 21633.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21603.MSG
    • CM RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21603.MSG
    • CM RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21603.EML
    • HPRM CM RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21603.MSG
    • Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21603 , RID 700638752 & CID 48.EML
    • Identity Document required for DNA Sample Collection at IOM, Case File Reference CLF2020 21631, RID 5639938, CID 86499747147 [SE.EML
    • FW Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21612, RID 1440641072 & C.EML
    • FW Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21633, RID 1570640919 & C.EML
    • Identity Document required for DNA Sample Collection at IOM, Case File Reference CLF2020 21631, RID 5639938, CID 86499747147 [SE.EML
    • RE Identity Document required for DNA Sample Collection at IOM, Case File Reference CLF2020 21631, RID 5639938, CID 86499747147.EML
    • Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21603 , RID 700638752 & CID 48.EML
    • RE Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21603 , RID 700638752 & CI.EML
    • FW Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21612, RID 1440641072 & C.EML
    • RE Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21612, RID 1440641072 & C.EML
    • FW Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21633, RID 1570640919 & C.EML
    • RE Identity Document Letter required for DNA Sample Collection at IOM, Case File Reference CLF2020 21633, RID 1570640919 & C.EML
    • DNA to be rebooked Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • DNA to be rebooked Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • DNA to be rebooked Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • DNA to be rebooked Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • DNA Consent Inquiry File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 21631.MSG
    • Email to MA for info on consent RE DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • Consent for DNA Re DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • Email sent to MA RE DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • Email sent to POST CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603.MSG
    • Response from POST RE FW CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF20.MSG
    • Response from Post RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 2.MSG
    • CM RE DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • CM RE DNA testing - CLF2020 21603, 21612, 21631, 21633.MSG
    • CM FW FW CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2.MSG
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 2163.MSG
    • CM RE FW CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2.MSG
    • CM RE FW CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2.MSG
    • CM RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 .MSG
    • CM RE FW CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2.MSG
    • CM FW FW CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2.MSG
    • CM RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612, CLF2020 21633, CLF2020 21603 & CLF2020 .MSG
    • CM Re DNA testing - CLF2020 21603, 21612, 21631, 21633.EML
    • RE RE DNA testing - CLF2020 21603, 21612, 21631, 21633.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21612.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21633.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21603.EML
    • RE CM DNA Consent Inquiry DNA Testing Request Australia, File Ref CLF2020 21631.EML
    • IdentiLab email DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • IdentiLab email DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • IdentiLab email DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • Identilab email DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • Lab to MA - re-identity docs.MSG
    • Lab to MA - re-identity docs.MSG
    • Lab to MA -re-identity docs.MSG
    • Lab to MA - re-identity docs.MSG
    • IMMI s57 Natural Justice - CLF2020 21612 - 1440641072 - HALEEMA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Legal Practitioner).HTML
    • IMMI s57 Natural Justice - CLF2020 21631 - 5639938 - TAYYIBA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Legal Practitioner).HTML
    • IMMI s57 Natural Justice - CLF2020 21633 - 1570640919 - OWAIS.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Legal Practitioner).HTML
    • IMMI s57 Natural Justice - CLF2020 21603 - 700638752 - ABUZAR.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Legal Practitioner).HTML
    • IMMI s57 Natural Justice - CLF2020 21603 - 700638752 - ABUZAR.EML
    • Re IMMI s57 Natural Justice - CLF2020 21603 - 700638752 - ABUZAR.EML
    • RE File Recall for ALIKHIL, Nazli (24 04 1984,F) (CID 33204106342) - RE SIBLING 117 Applicants - AFGHANISTAN - CLF2020 21603 .EML
    • FW RE File Recall for ALIKHIL, Nazli (24 04 1984,F) (CID 33204106342) - RE SIBLING 117 Applicants - AFGHANISTAN - CLF2020 21.EML
    • RE RE File Recall for ALIKHIL, Nazli (24 04 1984,F) (CID 33204106342) - RE SIBLING 117 Applicants - AFGHANISTAN - CLF2020 21.EML
    • Re CM DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • Re CM DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • Re CM DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • CM Re CM DNA results- CLF2020 21603.EML
    • Re CM DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • Re CM DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • Re CM DNA results- CLF2020 21603, CLF2020 21612, CLF2020 21631, CLF2020 21633.MSG
    • CM Re CM DNA results- CLF2020 21603.EML
    • RE RE File Recall for ALIKHIL, Nazli (24 04 1984,F) (CID 33204106342) - RE SIBLING 117 Applicants - AFGHANISTAN - CLF2020 21.EML
    • RE RE File Recall for ALIKHIL, Nazli (24 04 1984,F) (CID 33204106342) - RE SIBLING 117 Applicants - AFGHANISTAN - CLF2020 21.EML
    • RE RE File Recall for ALIKHIL, Nazli (24 04 1984,F) (CID 33204106342) - RE SIBLING 117 Applicants - AFGHANISTAN - CLF2020 2.EML
    • RE RE File Recall for ALIKHIL, Nazli (24 04 1984,F) (CID 33204106342) - RE SIBLING 117 Applicants - AFGHANISTAN -CLF2020 216.EML
    • RE SIBLING 117 Applicants - AFGHANISTAN - CLF2020 21603.EML
    • FW SIBLING 117 Applicants - AFGHANISTAN - CLF2020 21603 .EML
    • RE SIBLING 117 Applicants - AFGHANISTAN - CLF2020 21603 .EML
    • Re Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603), HALEEMA (CLF2020 21612), TAYYIBA (CLF2020 21631.MSG
    • Re Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603), HALEEMA (CLF2020 21612), TAYYIBA (CLF2020 21631.MSG
    • Re Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603), HALEEMA (CLF2020 21612), TAYYIBA (CLF2020 21631.MSG
    • CM Re Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603), HALEEMA (CLF2020 21612), TAYYIBA (CLF2020 .EML
    • Automatic reply Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603).EML
    • Automatic reply Orphan Relative (subclass 117) visa applications for HALEEMA (CLF2020 21612).EML
    • Automatic reply Orphan Relative (subclass 117) visa applications for TAYYIBA (CLF2020 21631).EML
    • Automatic reply Orphan Relative (subclass 117) visa applications for OWAIS (CLF2020 21633).EML
    • Re Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603), HALEEMA (CLF2020 21612), TAYYIBA (CLF2020 21631.MSG
    • Re Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603), HALEEMA (CLF2020 21612), TAYYIBA (CLF2020 21631.MSG
    • Re Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603), HALEEMA (CLF2020 21612), TAYYIBA (CLF2020 21631.MSG
    • CM Re Orphan Relative (subclass 117) visa applications for ABUZAR (CLF2020 21603), HALEEMA (CLF2020 21612), TAYYIBA (CLF2020 .EML
    • IMMI Refusal Notification with Decision Record - CLF2020 21633 - 1570640919 - OWAIS.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Legal Practitioner).HTML
    • IMMI Refusal Notification with Decision Record - CLF2020 21612 - 1440641072 - HALEEMA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Legal Practitioner).HTML
    • IMMI Refusal Notification with Decision Record - CLF2020 21603 - 700638752 - ABUZAR.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Legal Practitioner).HTML
    • IMMI Refusal Notification with Decision Record - CLF2020 21631 - 5639938 - TAYYIBA.PDF
    • Covering letter(EMAIL) - POINT_OF_CONTACT ROBERT BRANDON CHARLES GRAHAME YEOMANS - (Legal Practitioner).HTML
    • AAT checklist - Mr ABUZAR CLF2020_21603.PDF
    • AAT checklist - Ms HALEEMA CLF2020_21612.PDF
    • AAT checklist - Ms TAYYIBA - CLF2020_21631.PDF
    • AAT checklist - Mr OWAIS - CLF2020_21633.PDF
    • 2216180.EML
    • AAT Checklist -TAYYIBA -CLF2020_21631.PDF

  12. The Tribunal has read and carefully considered the following additional evidence provided to it prior to the hearing.

    • Department refusal Decisions for: Haleema, Tayyiba, Owais and Abuzar
    • Representative email of 28 June 2023 advising of difficulties/lack of material evidence
    • Statutory Declaration of Nazli Alikhil, 22 June 2023
    • Representative submission (undated), received on 32 August 2023
    • Phone records between 2022 and 2023 (part of rep submission)
    • Additional money transfer document of total 65 AUD, date illegible (part of rep submission)
    • Family photographs

    Are the visa applicants orphan relatives of an Australian relative?

  1. 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.

  2. ‘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, Mrs Nazli Alikhil, the paternal aunt of the applicants and sister of their deceased father, is the relevant Australian relative. She is an Australian citizen by conferral on 26 September 2012.

  3. For the reasons below, the visa applicants were each an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicants are each an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.

    Age – reg 1.14(a)(i)

  4. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The Tribunal has carefully reviewed the Taskeras presented by each of the 4 applicants, (1, 2, 3, 4). It has compared the original documents with a Copy of a document reference guide produced by the Fraud Prevention Unit, US Embassy in Kabul, Afghanistan. The original, pre-English translated documents coincide with legitimate examples contained within the guide. The Taskeras show that each of the 4 applicants, (1, 2, 3, 4) were below the age of 18 at the time of application.

  5. The Tribunal is acutely aware of the issues associated with obtaining genuine or legitimate Afghan documentation. However, in this instance it observes no inconsistencies relating to any of the documents presented. It notes the identification photographs used at the time of application align with perceived chronological age of the applicants. It also notes the identification links on the Taskeras between the review applicant, the 4 applicants, (1, 2, 3, 4) and the deceased father of the applicants who was the brother of the review applicant. The unambiguous correlations which exist over such a substantial time period reassure the Tribunal that the identification documents, (Taskeras) are unlikely to have been falsified.

  6. Accordingly, reg 1.14(a)(i) was met by the 4 applicants, (1, 2, 3, 4) at the time of application and continues to be met at the time of decision by applicants 2, 3, 4. In the case of applicant 1 they do not do so only because they have turned 18 prior to this decision but were under 18 at time of application as is relevant to cl 117.221.

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

  7. Regulation 1.14(a)(ii) requires that the visa applicants do not have a spouse or de facto partner. The Tribunal notes that the delegate at the time of their decision did not find evidence of, nor claimed any concerns that applicants 1, 2, 3, or 4 had spousal or de facto partner relationships. The Tribunal has likewise found this to be the case and is satisfied by the verbal evidence given at the hearing which reinforced this belief. The Tribunal notes the ages of the 4 applicants, (1, 2, 3, 4) at the time of application and currently. In its experience, it is unlikely when considering the ages of the applicants combined with minimal acceptable relationship prospects whilst living as illegal immigrants in neighbouring Pakistan, that the 4 applicants, (1, 2, 3, 4) would have or are likely in the future to have a spouse or de facto partner.

  8. No evidence has been provided to the Tribunal that such relationships existed at the time of application nor time of decision. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision for the 4 applicants, (1, 2, 3, 4).

    Relative – reg 1.14(a)(iii)

  9. 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.

  10. The Tribunal notes the concern expressed by the delegate as to whether or not the review applicant was related and was in fact the aunt of the 4 applicants, (1, 2, 3, 4). The Tribunal finds the willingness of the review applicant to arrange genetic testing for herself and the applicants strongly suggests she believes there is a clear familial linkage.

  11. The DNA testing which had to be repeated due to an administrative issue at considerable cost and physical risk to the 4 applicants in Pakistan was ultimately inconclusive. This was a direct result of the fact that her brother, the children’s father, was dead and the children’s mother was incapable of assisting due to extreme ill health. The Tribunal has reviewed the relevant Death Certificate and photographic evidence demonstrating to its satisfaction the 4 applicant’s father is dead. It has also studied the health / medical reports which it is satisfied are genuine, associated with the mother. It is clearly beyond her capacity to assist. This was explored at the hearing and the evidence presented further solidified this assessment. And

  12. Farhad Bibi’s condition is consistent with the definition of permanent incapacity as explained by Merkel J in Nguyen v MIMA, namely that: ‘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.’[1]

    [1] Nguyen v MIMA (1998) 158 ALR 639

  13. The Tribunal has been made aware the DNA lab was willing to explore an avenue for Ms. Farhad Bibi to provide a DNA sample, however, the Department’s restrictive policy regarding identity requirements, something entirely outside of the control of the applicants, was not amenable to the kind of flexibility that would have been required. Whilst appreciating the need for policy and procedure it appears regrettable that a compromise was not possible. This was corroborated during the hearing.

  14. It is noted that the review applicant has expressed a willingness to undertake additional genetic investigation at her expense. Evidence showing her dire personal and financial circumstances leaves the Tribunal to conclude this is a substantial consequential undertaking and unlikely to be undertaken without a belief of success in the form of a favourable outcome.

  15. The Tribunal does not share the view, as appears to have been expressed by the delegate, that inconclusive results constitute a decision in the negative. The test report is quite clear that they are inconclusive. The Tribunal has drawn the conclusion no inference should therefore be drawn from this. It is neutral in consequence. 

  16. There is however a substantial body of additional evidence to strongly suggest or demonstrate the familial connection between the 4 visa applicants and the review applicant.

  17. Photographs presented demonstrate the familial connection between the review applicant, her brother and the 4 applicants.

  18. Substantial telephone and communication records show constant daily communications between the parties. The Tribunal struggles to find any other rational reason for such levels of communication other than deep concern most likely rooted in familial linkages as you might expect of the only adult still able to provide care, from a distance for her relatives.

  19. Verifiable evidence of ongoing financial support provided to the 4 applicants by the review applicant, when she and her family face substantial personal and financial hardship. It is not credible to apply any other motivation to such behaviour when understanding that it comes as a direct negative cost to her immediate family.

  20. The Department’s travel records and photographs show the review applicant has recently travelled to meet with her nieces and nephews. Noting her family circumstances and the dire circumstances of her relatives sheltering in Pakistan, the only plausible explanation is that of extreme concern. Under questioning it was revealed she and her husband borrowed money from a friend in order to fund her travel which they are slowly paying back.

  21. Whilst the Department may contend that limited weighting should be placed on Taskeras due to the limited security features they possess and susceptibility to document fraud, particularly given their current inability to verify Taskeras at the present time, they can not be entirely dismissed. The fact that circumstances imposed upon the population by the Taliban and the Australian Government’s subsequent inability to verify their veracity should not in all fairness be laid at the feet of the applicants.

  22. The review applicant’s obvious distress and subsequent determination to assist the 4 applicant’s is a very strong indicator of her belief in both her genetic connection and her responsibility which is directly linked to the family connections and her deceased brother. The Tribunal found the review applicant’s demeanour and testimony provided during the hearing reinforced this view.

  23. The Tribunal notes the following statement from the review applicant’s representative. A view that the Tribunal acknowledges conforms to their knowledge on the issue under discussion.

    ….. ‘When we assisted Ms. Alikhil to review her Taskera, including its historical English translation dating from May 2006, while preparing her response to the NJ letter, it became apparent there was a clear link in the reference numbers when comparing her historical Afghan identity document with those of her nieces and nephew. As explained in her Statutory Declaration of 27 May 2022, there is a direct correlation between the reference number on her own Taskera and that of each of the Children’s Taskeras, each referring to their father’s record. In Afghanistan, a reference document (usually of a paternal male relative) is required to enable the authorities to locate the family register book and create a new entry and Taskera. The evidence of common information across the Taskeras held by Ms. Alikhil and the Children, including reference numbers and paternal grandfather’s name supports the inference that the Taskeras of the Children were issued based on legitimate and genuine records held by the relevant Afghan authorities.’ ….. .

  24. Clearly the Taskera issue would have been subject to scrutiny at the time of her visa application had the Department been concerned when reviewing her application. The visa was approved. It is noted the review applicant’s Taskera was the source document for her Afghan Passport and her Australian Passport. Both were issued. It is reasonable to infer the genuineness of her Taskera and thus the probable legitimacy of its linkage to the 4 applicants and the genuineness of their Taskeras. The Tribunal is acutely aware of the diligence employed in Passport issuance, particularly post 9/11. This was again explored at the hearing.

  25. It should be emphasised that the Department’s inability to conclusively verify Taskeras at this time is not the fault, nor failing of the visa applicants. It is not within their control. This visa application was lodged prior to the Taliban takeover of Afghanistan in August 2021 following which Taskera verification channels have ceased. The visa applicants lodged their applications at a time when Taskera verification was ostensibly possible and could have been performed by the Department had concerns arisen within the 13 months of the application being made and prior to the Australian Government and its allies withdrawing from Afghanistan.

  26. The Delegate in their decision record, conceded that searches of Ms. Alikhil’s historical visa applications were performed. It has been confirmed that Ms. Alikhil declared she had a brother by the name of Mohammad Zahir Shah previously. Ms. Alikhil has consistently declared her relationship to the Children’s father to the Department. It is highly unlikely that such a scenario could have been anticipated and a false narrative was put in play more than a decade prior to the current application. The Tribunal is surprised that the delegate placed only limited weighting on this, particularly as they initiated the investigation. It appears the delegate placed minimal weight upon the credibility of the review applicant although no evidence was presented to explain this circumstance.

  27. The Tribunal found the verbal testimony during the hearing in relation to the review applicant’s deteriorating mental health compelling. It has accepted as fact although no medical evidence has been provided in evidence to support. The Statutory Declaration made on 22 June 2023 correlates with this belief. In the Tribunal’s experience such an extreme health response is most likely to occur when the scenario is extremely dire, and the interpersonal linkages are substantial. The claimed relationships fit such a scenario.   

  28. Having considered all of the factors listed above in paragraphs 21-39 of this document the Tribunal has concluded substantial evidence supports the belief that the review applicant is in fact the aunt of the 4 visa applicants.

  29. 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)

  30. 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.

  31. The Tribunal has reviewed the evidence of the applicant father’s demise. This has taken the form of photographs taken post-mortem, Death Certificate and Doctors letter. It is satisfied that at the time of application and at the time of this decision the 4 applicant’s father is deceased. This was corroborated during the hearing by the visa applicant 1 and the review applicant.

  32. The Tribunal has reviewed the documentary medical evidence provided which clearly demonstrates the 4 applicant’s mother’s health status. It is self-evident that her mental health and physical health are so poor that she is incapable of providing any meaningful care for her children and likewise her self-care is precarious. The Tribunal accepts the Statutory Declaration previously referred to, dated 22 June 2023 made by the review applicant which explains the circumstances facing the children. This was reinforced by supportive statements made by the review applicant during the hearing. It is accepted by the Tribunal that the applicant’s mother is incapable of providing care and the evidence strongly indicates this is unlikely to change. The Tribunal is of the firm belief that Farhad Bibi’s condition is consistent with the definition of permanent incapacity as explained by Merkel J in Nguyen v MIMA. The Tribunal has no evidence before it which might indicate a likelihood of the circumstance changing in the positive at any point in the foreseeable future.

  33. 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)

  34. 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 applicants. No evidence has been discovered by the Tribunal or provided to the Tribunal by any of the 4 visa applicants, the review applicant or the Department that leads it to believe the grant of a visas would not be in the best interests of the visa applicants.

  35. The Tribunal has researched the relevant Country information and notes the current ongoing deteriorating social, education opportunities and economic circumstances that would face the applicants if they were unable to relocate to Australia. Should they be deported from Pakistan where they reside illegally, back to Afghanistan, the consequences would in all probability worsen significantly.

  36. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

    Conclusion on time of application criterion:

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

    Conclusion on time of decision criterion:

  38. The Tribunal finds that the visa applicants 2, 3, 4, continues to satisfy the criterion in cl 117.211. Applicant 1 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 by all 4 applicants.

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

    DECISION

  40. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the four named visa applicants, (1, 2, 3, 4) 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.

    Peter Emmerton
    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.


Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

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  • Judicial Review

  • Procedural Fairness

  • Remedies

  • Statutory Construction

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Cases Cited

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EC v MIMIA [2004] FCA 978
Nguyen v MIMA [1998] FCA 1307