Anota (Migration)

[2023] AATA 3516

Anota (Migration) [2023] AATA 3516 (12 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sofia Anota

VISA APPLICANT:  Miss Bashule Kelil Geleto

REPRESENTATIVE:  Ms Sara Khodajoo

CASE NUMBER:  1919692

HOME AFFAIRS REFERENCE(S):         2016046776

MEMBER:Justin Meyer

DATE:12 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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 12 September 2023 at 5:19pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) visa – applicant was an orphan relative of an Australian relative at the time of application – each parent of the visa applicant is deceased – Tribunal is satisfied that the visa applicants cannot be care for by either parent – best interests of children – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359

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 16 July 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 15 April 2016. 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 and cl 117.221.

4. The delegate refused to grant the visa because he was not satisfied with the claimed whereabouts of the applicant’s father and mother. He was not satisfied that the applicant could not be cared for by either parent because each was either dead, permanently incapacitated or of unknown whereabouts. Thus, the applicant did not meet the requirements of Regulations 1.14(b) and did not meet the requirements of cl 117.211 and cl 117.221 of Schedule 2 to the Regulations, the delegate found.

5. The review applicant appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Dureti Kelil Geleto, the visa applicant’s claimed first cousin.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Oromo 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 at the time of application the visa applicant was an orphan relative of an Australian relative.

   Is the visa applicant an orphan relative of an Australian relative?

10. 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.

11. ‘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, Sofia Geleto (the claimed aunt of the visa applicant), is the relevant Australian relative, and she is an Australian citizen.

12. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant an orphan relative of an Australian relative at the time of this decision. There is evidence that the visa applicant and her sponsor are niece and aunt. 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)

13. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The applicant provided documentary evidence that she is presently aged 17 years. She was under 18 at the time of application. The Tribunal finds that the visa applicant continues to satisfy the criterion in cl.117.211. Accordingly, reg 1.14(a)(i) was met at the time of application and continues to be met at the time of decision.

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

14. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. Having questioned the witnesses and examined all materials before me there is no evidence that this has occurred. Accordingly, r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

15. 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.

16. Having questioned the witnesses and examined all materials before me there is no evidence that the review applicant (sponsor) is anyone else than the visa applicant’s aunt, who is an Australian citizen.  Accordingly, r.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)

17. 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.

18. The Tribunal has questioned, in detail, the review applicant (sponsor) and witness (the visa applicant’s claimed sister had a separate application and appeal which I heard) on the claimed death or disappearance of their parents.

19. The case is a problematic one as the evidence has changed from the initial application for the visa and what is claimed before the Tribunal:

    The initial claims in the visa application of 15 April 2016

    ·     Her mother is Ms Mushura Nagesso and her father is Mr Kelil Geleto. Both her parents are deceased.

    ·     Her parents’ death certificates were produced. Her claimed father’s death certificate states that he died on 27 May 2008 Ethiopian Calendar (EC) and her mother’s death certificate states that she died on 16 April 2002 (EC).

    ·     She is the full sibling of Dureti Kelil GELETO - they share the same father and mother.

    ·     The review applicant (sponsor) is her biological aunt. The review applicant (sponsor) stated she is related to the children as their paternal aunt. The visa applicants are the children of her brother.

    The departments’ further investigation of the claims:

20. In considering the above information it is important to note that the review applicant (sponsor) has stated she is the children’s paternal aunt, with the implication that the applicants are the children of her brother. DNA testing, however, showed that the children do not share the same biological father. As such, a discrepancy exists which must be resolved.

21. The most likely results obtained for a link between the review applicant (sponsor) and both of the tested children indicate either that she is in fact related as their “maternal aunt” or that two different males (who are each a brother of the review applicant (sponsor)) are the biological fathers of each of the tested children.

22. The applicant presented school documents from Lety Primary and Junior Secondary School. These school documents were used to conduct background checks to establish whether the school has information regarding the applicant’s parents including their whereabouts. The following was found from these background checks:

     The applicant was enrolled in the school by the claimed father on 01/01/2005 EC; and

     The school last had contact with the applicant’s parents on 30/06/2009 EC.

23. Natural justice letters were sent in regard to the DNA testing report and information obtained from the background checks conducted at the applicant’s school.

24. A response regarding the DNA testing was received from the sponsor submitting the following:

    ·     The applicant’s biological mother is Mushura Nagesso and her biological father is Kelil Geleto;

    ·     Kelil Geleto is the sponsor’s full sibling;

    ·     The applicant’s parents are deceased;

    ·     The sponsor is the applicant’s aunt;

    ·     Bashule Kelil Geleto’s mother is Fatuma Geleto and her father is unknown as she was not married at time (sic);

    ·     Fatuma Geleto is the sponsor’s full sister;

    ·     Both Kelil Geleto and Fatuma Geleto are full siblings of the sponsor;

    ·     The applicant and Bashule Kelil Geleto ‘…are cousins but they are sisters as (they) share the same mother and father from birth. They both have known each other as biological sisters and (the) community also known (sic) them as sisters…’; and

    ·     Both Bashule Kelil Geleto and Dureti Kelil Geleto have no one to take care of them as they full depend on the sponsor financially and ‘morally’.

25. A response regarding the background checks conducted at the applicant’s school was received from the sponsor submitting the following:

    ·     That the school could not have contacted the applicant’s father as he passed away in February 2008 E.C.;

    ·     That the sponsor has submitted ‘…receipts I sent to Osman Geleto to assist Dureti and Bashule and a letter stating that I have been supporting them since Feb 2008 E.C./Feb 2016 Gregorian Calendar (G.C.)…’;

    ·     That Osman Geleto is the person who enrolled the applicant in school as the sponsor sent money to him;

    ·     In the sponsor’s opinion, this office should have checked for the authenticity of the document from the source and from a responsible organisation, for example, regarding the death of the father, this office should have checked from the city council where the death certificate was obtained and from the school, this office should have checked who the responsible parent is and who enrolled and paid school fees; and

    ·     In conclusion, the sponsor doubts that the school would say that they have contacted the applicant’s father.

26. The delegate drew the following conclusions:

    ·     He placed significant weight on the DNA testing report which states that testing on the X-Chromosome has shown that Bashule Kelil GELETO and Dureti Kelil GELETO do not share the same biological father, likely in fact to be related as half biological siblings. He was concerned that the applicant and Bashule Kelil GELETO have presented birth certificates which show that they have the same mother and father, contrary to the facts, in pursuit of a positive visa outcome.

    ·     He also placed significant weight on the background checks which have found that the applicant’s school has had contact with the applicant’s father post the date of his claimed death as per the Certificate provided.

    ·     As such, he was unable to place weight on the response to the natural justice letter on this matter given that the applicant has demonstrated a propensity to provide false/misleading information to support the application.

    ·     Therefore, he found that:

     He was not satisfied with the claimed identity of the applicant’s father and mother; and

     He was not satisfied with the claimed whereabouts of the applicant’s father and mother.

    ·     He was not satisfied that the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. It followed that the applicant does not meet the requirements of Regulations 1.14(b).

    · The applicant thus did not meet the requirements of cl 117.211 and cl 117.221 in Schedule 2 to the Regulations.

    The hearing

27. The review applicant (sponsor) sought to reconcile the inconsistencies and apparent illogicalities in the hearing.

28. She maintained that the girls were cousins.

29. The review applicant (sponsor) said her deceased sister, Fatuma, was a student. She was a Muslim, and thus wore Muslim clothing that did not show the fact that she was pregnant. She gave birth and then died.

30. Bashule she described as the “daughter of my sister”. She said “my brother raised Bashule with his daughter”. She did not know that her sister had given birth back at that time.  Her father eventually told her. The only other person who knew was her brother – it was a family secret.

31. Fatuma’s child Bashule had a father unknown. No one knows who he was but it was from the time that they were at school. 

32. Regarding the biological relationship between Bashule and Dereti, the review applicant (sponsor) said the DNA showed that Bashule was her sister’s daughter and Dureti was her brother’s daughter. The girls do not know this – they believe that they are sisters. The matter was kept quiet in the family.

33. There was no direct proof that Fatuma died after giving birth but the review applicant’s (sponsor’s) brother could give evidence about that.

34. To summarise the situation this was the parties’ status:

    Bashule         mother:          Fatuma

    father:            unknown

    Dureti            mother:          Mashura

    father:            Kelil

35. The review applicant (sponsor) said she was very shocked by the revelation. Her brother told her about it after the visa rejection. She had not told the girls, but she will once they arrive in Australia and when they are more mature.

36. The Tribunal asked the review applicant (sponsor) about the death of her ‘sister’ Mashura. She had been very sick and there was little effective treatment available. She did not know the cause of death but it was right after childbirth. Her brother had told her about this. The death was in 2010 (Western calendar).

37. Kelil died in 2016. He had not been sick yet died suddenly. It might have been a heart issue the review applicant (sponsor) said. Kelil was born in 1972 and was in his forties when he died. The review applicant (sponsor) was in Ethiopia in 2015, in the calendar year before Kelil died. She visited again in 2016 to attend Kelil’s funeral. He is buried in a place called Kuyera.

38. The Tribunal enquired about identification of the gravesite, but the review applicant (sponsor) said that in their Muslim culture the ladies do not go there. However, in January 2023 the review applicant (sponsor) went again to Ethiopia and he saw the burial area, and it was with the other family. Muslims do not write names on graves she said.

39. The review applicant (sponsor) said that she is the only member of the family that is a Christian. She is married to a Christian.

40. The review applicant (sponsor) said that in her country there are many rapes and kidnappings. Girls are in great danger. She said that she was afraid that the girls would be raped when she is away. Neither girl is engaged to anyone and they do not have work.

    Witness: Dureti Kelil Geleto, the visa applicant’s claimed first cousin, by telephone

41. Ms Duretti said that her father died accidentally in 2016. Her mother died in 2010 from sickness.

42. I asked about the accidental death of her father. She was not there to witness it, but it was a car accident. I asked if this was well known in the family and the applicant said that it was not. She did not know if her aunt (the review applicant (sponsor)) was aware of it. Her father’s name was Kelil.

43. As for her mother, Mashura, he did not know her illness and cause of death as he was very little at the time.

44. She is not working at the moment, only studying. She is not engaged or married. Her sister lives in the same house as her – her name is Bashule, and she is also unmarried and a student. She saw her aunt some two months before.

45. She said her parents were married in Kuyera. She added that Muslims do not write down the names on graves.

    Note

46. The review applicant (sponsor) clarified that her brother had been in an accident and died after that. She said the accident may have eventually caused his death.

    Post hearing submission

47. On 19 June 2023 the applicant’s representative made this submission:

    In support, we attach the following documents:
    • Statutory declaration from Sofia Geleto Anota dated 16 June 2023; and
    • Emails from Alexandra Lucca of DNA Solutions dated 15 June 2023.

    Submission as to parties’ relationship

    A report from DNA Solutions dated 16 August 2018 suggested that there was “moderately strong support” that the visa applicants, Ms Dureti Kelil Geleto and Miss Bashule Kelil Geleto, are related as half biological siblings compared to unrelated individuals. However, the review applicant, Ms Sofia Geleto Anota, has instructed that they are first biological cousins as Dureti is the biological daughter of her deceased brother, Kelil, and his wife, while Bashule is the biological daughter of her deceased sister, Fatuma with the identity and whereabouts of her biological father being unknown.

    DNA Solutions has been consulted about this matter and in her emails dated 15 June 2023, Senior Scientist/Head of Laboratory, Ms Alexandra Lucca, has advised the following:
    Although they reported a half-sibling likelihood, a different relationship was not proposed at the time, and therefore, was not examined statistically. The laboratory is guided by the propositions that are put forward to them; they do not automatically assess every single type of relationship possible between two individuals.

    • The girls may be related as first cousins and this relationship may be likely. Even though a half sibling relationship was explored and reported, this does not exclude the possibility that the girls are related as biological cousins.

    • Based on the testing undertaken, it is difficult to determine whether they are more likely to be first cousins or siblings. The case would need to be re-examined with new propositions being put forth. The DNA test results were deemed to be inconclusive, and they cannot add more weight on one type of relationship than the other.

    Based on Ms Lucca’s professional advice, it is our submission that is possible and likely that Dureti and Bashule are related as biological first cousins.

    After the DNA test results were released and the review applicant learnt that Dureti and Bashule were not biological siblings, she provided the correct information to the Department of Home Affairs regarding their relationship, rather than going along with what the DNA tests had presented. It is submitted that the fact that the review applicant provided what she knew to be the correct information, although it contradicted the DNA tests results, adds to her credibility.

    Invitation to comment on causes of Kelil’s death

    During the hearing, the review applicant instructed that her brother, Kelil, passed away suddenly and that she does not know the exact cause of his death, but it could possibly have been a heart attack. On the other hand, Dureti instructed that her father had passed away in a car accident. The cause of death in Kelil’s death certificate has also been recorded as “accident”.

    The review applicant has commented on this discrepancy in her statutory declaration dated 16 June 2023. It is our submission that this discrepancy should not be used to make an adverse credibility finding. Dureti was a young child when her father passed away and the review applicant and her brother, Aliye, have instructed that the authorities in Ethiopia did not investigate the causes of Kelil’s death. Therefore, it is probable that the exact cause of his death is uncertain or contended. It is submitted that regardless of the cause of his death, evidence of Kelil’s death has been provided in the form of a death certificate and there is no evidence to suggest that he is still alive. Accordingly, regulation 1.14(b) was met at the time of application and continues to be met at the time of decision.

    Statutory declaration

    ·I, Sofia Geleto Anota of 58 Hartleigh Street, Clyde, Victoria 3978, Personal Carer, make the following declaration under the Statutory Declarations Act 1959:

    ·I am providing this statement in response to the invitation to comment or respond to information from the Administrative Appeals Tribunal (AAT) dated 14 June 2023.

    ·During the hearing on 8 June 2023, I was asked how my brother, Kelil, had passed away. I responded that he had died suddenly and that I did not know the exact cause of his death but that it could have possibly been a heart attack. However, when she was being questioned over the phone, my niece Dureti said that her father had died in a car accident.

    ·I am aware that Kelil was involved in a serious car accident, but this happened around 2 years before he passed away. Kelil suddenly died in February 2016, but the cause of his death was not investigated by the authorities. Because of his sudden death, I assumed that it could have been a heart attack, but it is still not clear how he died.

    ·I believe Dureti told the AAT about what had happened to her father based on what she had heard from other people. As she herself mentioned during the hearing, she did not actually witness the accident or his death. Also, she was only 12 years old at the time of his death, so she may not have been aware of what had happened.

    ·I also note that the reason for his death on Kelil’s death certificate has been translated to “accident”. In the Oromo language, the word for “accident” can also refer to someone passing away suddenly. It does not necessarily mean ‘accident’ in the literal sense as is inferred in the English language.

    ·While I understand that there is some confusion about the exact cause of death, I confirm again that my brother, Kelil has passed away and his death certificate has been provided as evidence of this.

    [Declared 16 June 2023]

1. The post hearing submission was in part a response to a letter written by the Tribunal under section 359A of the Migration Act 1958 inviting comment or response to certain information which I considered would, subject to comments or response, be the reason, or a part of the reason, for affirming the decision under review. It was noted, however, that the Tribunal had not made up its mind about the information. The particulars of the information were:

   In the hearing the review applicant (sponsor) stated that visa applicant children’s father – her brother Kelil - died suddenly, of an unknown cause, and not of an illness that she knew of. She said that it could have been a heart complaint. However, the visa applicant Miss Dureti Kelil Geleto in her oral evidence said that he died in car accident. This appears to be a contradiction of fact which might cause the Tribunal to doubt evidence submitted and firm the view that the visa applicants do not meet the requisite criteria.

   Analysis and conclusions

2. The Tribunal now considers the evidence regarding the claim that the visa applicants cannot be cared for by either parent because each of them is dead (per Regulation 1.14(b)).

3. As mentioned earlier, the case is a problematic one as the evidence has changed from the initial application for the visa and what is claimed before the Tribunal.

4. A question is whether it is plausible that various parties once mistakenly believed that both children’s parents were Ms Mushura Nagesso and Mr Kelil Geleto, who are now deceased.

5. Another question is whether it is plausible that the other visa applicant’s (Dureti’s) mother is Mashura and her father is Kelil.

6. A further question is whether Dureti’s formerly claimed sister (Bashule, the visa applicant) is in fact her cousin. The claim here is that Fatuma was Bashule’s mother and her father was an unknown male.

7. From the standpoint of DNA evidence it is possible that the two girls are cousins in this way. While the Tribunal did not ask the DNA laboratory to test with reference to the girls being possible cousins it is noted that their subsequent advice is that the girls may be related as first cousins and this relationship may be likely. Even though a half sibling relationship was explored and reported, this does not exclude the possibility that the girls are related as biological cousins.

8. Thus, they may well be cousins according to the DNA evidence. The claim is that all of the biological parents are deceased or of unknown whereabouts, thus the Tribunal does not have an option of testing a biological parent.

9. The Tribunal also considers that the visa applicant’s (Bashule’s) mother secretly was pregnant and died to be a possible scenario. There is nothing on the file that rules this out. Common knowledge tells us that unplanned pregnancies frequently occur, and teenagers and their families can try to hide this, and little if anything might be known about the biological father. I note that Ethiopia is a traditional society, where people can frown on such situations. In a developing country there are rarely the means of establishing paternity and pursuing a father for parental and financial obligations.

10. All of this is possible. The Tribunal seeks to rule out scenarios which are not possible, but these are not impossible scenarios. 

11. I turn my mind to ether there are other inconsistencies or improbabilities which detract from the parties’ account. On balance the Tribunal accepts that Kelil died suddenly of a heart attack and did not die in a car accident. What a 12 year-old child knows and is told is matter of speculation and it can occur that the truth is kept from a child. In any event, and despite a certain level of confusion, it does not amount to so much confusion to lead me to discount the death certificate for Kelil.

12. Finally, the delegate relied on an apparent school record showing that the school last had contact with the applicant’s parents on 30 June 2009 EC (after the claimed death).

13. The Tribunal has examined the document prepared by the International Migration Organisation representative, which is a handwritten note about what the school said. The Tribunal has endeavoured with the department to see a source or original document or evidence about this discrepancy but to date has not received clarification. This is understandable in the circumstances of the length of time that passed, and the challenges of record keeping and recovery. Noting that the Tribunal has an obligation to administer a review process in a way that is fair, just, economical, informal and quick, the Tribunal needs to proceed to its decision. On balance the Tribunal cannot rule out that there was an error in notation, an error on the part of school staff, or a belief that another individual or individuals who were alive at the time were the parents. From this is insufficient for me to positively conclude that the parents were alive (or that one parent was alive).

14. Thus, I make the following findings:

    ·Miss Bashule Kelil Geleto’s (the visa applicant’s) mother was Fatuma Geleto, who is deceased. Miss Bashule Kelil Geleto’s biological father is of unknown identity and whereabouts.

    ·Miss Dureti Kelil Geleto’s mother was Ms Mushura Nagesso and her father was Mr Kelil Geleto, both of whom are deceased.

    ·Miss Bashule Kelil Geleto (the visa applicant) and the visa applicant (Miss Dureti Kelil Geleto) are first cousins. Their respective biological mother and father were brother and sister. The review applicant (sponsor), Ms Sofia Anota, is the visa applicant’s aunt. 

15. There is no parental care per reg 1.14(b), and the visa applicant cannot be cared for by either parent) because each parent of the visa applicant is deceased.

    Best interests – reg 1.14(c)

16. 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. There is nothing to suggest that this would not be in her best interests. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

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

18. The Tribunal finds that the visa applicant 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.

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

    DECISION

20. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets 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.

    Justin Meyer
    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.