Dador (Migration)

[2021] AATA 3739

Dador (Migration) [2021] AATA 3739 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Lina Clement Joul Dador

VISA APPLICANT:  Miss Rose Clement Joul Dador

CASE NUMBER:  1723665

HOME AFFAIRS REFERENCE(S):          2016046561 OSF2016046561

MEMBER:Justine Clarke

DATE:7 September 2021

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 07 September 2021 at 3:41pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – both parents of unknown whereabouts – visa applicant has now turned 18 – applicant willing to undertake a DNA test – delay in review applicant informing of her father’s passing – mother’s incapacity to care for her child – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

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 Immigration and Border Protection on 11 September 2017 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. On 5 January 2016, the visa applicant, Miss Rose Clement Joul Dador, applied for the visa. It is claimed that, at the time of application, the visa applicant was 16 years of age and that, at the time of this decision, she is 21 years of age. This claim is discussed later in these reasons.

3. At the time of this decision, Mrs Lina Clement Joul Dador, the review applicant and sponsor, is 43 years of age. She told the Tribunal that she is a single mother with six children, her husband having deserted her and the children. It is claimed that the review applicant and the visa applicant are siblings. This claim is discussed later in these reasons.

4. At the time of application, 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.

5. 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. Clause 117.211(a) requires that, at the time of application, the visa applicant is the orphan relative of an Australian relative. The visa applicant must continue to satisfy the criterion at the time of decision, or not do so only because he or she has turned 18: cl.117.221.

6. ‘Orphan relative’ is defined in r.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’ (a defined term): r.1.03. The definition of ‘close relative’ includes a sister of the person. It is claimed that the review applicant is the relevant Australian relative.

7. To be an orphan relative for the purposes of the definition in r.1.14, the person must not have turned 18 years of age (paragraph (a)(i)); must not have a spouse or de facto partner (paragraph (a)(ii)) and must be a ‘relative’ of that other person (paragraph (a)(iii)). Further, it must be that the person cannot be cared for by either parent because each parent is dead, permanently incapacitated or of unknown whereabouts (paragraph (b)). Finally, there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant (paragraph (c)).

8. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision. The delegate refused to grant the visa because the delegate was not satisfied that, at the time of application, the applicant was an orphan relative (as defined). Specifically, the delegate stated that he was not satisfied that the visa applicant’s parents were both of unknown whereabouts (r.1.14(b)). Accordingly, the delegate did not consider it necessary to make findings about the other requirements in r.1.14.

9. On 2 October 2017, the review applicant applied to the Tribunal for review of the primary decision. The review applicant was represented in relation to the review by her registered migration agent.

10. Due to the COVID-19 pandemic and associated ‘lockdown’ restrictions in Melbourne, it was not possible for the Tribunal to hold an in-person hearing.

11. On 3 September 2021, the review applicant appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal notes its appreciation of the review applicant attending by video, especially given that she was home-schooling her children at the time. (For part of the hearing the Tribunal could hear children in the background). The Tribunal also received oral evidence from the visa applicant by telephone from Nairobi, Kenya. The response to the hearing invitation stated that the review applicant also wanted the Tribunal to hear from Ms Suzan Tower by telephone. However, at the hearing the Tribunal was unable to contact Ms Tower. The review applicant explained that Ms Tower is her friend, that Ms Tower could verify that they went to Nairobi together[1] and that she had met the visa applicant and their mother. The review applicant stated that she was mindful that Ms Tower could not give oral evidence that she knew that the visa applicant and the review applicant were really sisters. When the Tribunal could not get through to Ms Tower on the telephone, the review applicant speculated that perhaps Ms Tower was at work. The Tribunal hearing was conducted with the assistance of an interpreter in the Nuer and English languages. The interpreter attended the hearing by telephone. The representative also attended the hearing by video from a different location to the review applicant.

    1The Tribunal notes the review applicant’s movement records evidence her as having departed Australia on 26 December 2019 and returned on 22 January 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether, at the time the visa application was made on 5 January 2016, the visa applicant was an orphan relative of an Australian relative (cl.117.211(a)).

14. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.117.221 (a time of decision criterion) as well.

15. In assessing this issue, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as the oral evidence given at the hearing. The Tribunal acknowledges that it has more evidence before it than had been before the delegate.

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

16. For the reasons below, the Tribunal finds that:

    ·at the time of application, the visa applicant was an orphan relative of the Australian relative and thus met cl.117.211(a); and

    ·at the time of this decision, the visa applicant does not continue to satisfy the criterion in cl.117.221 only because she has turned 18. Thus, she meets cl.117.221(b).

    Age – r.1.14(a)(i)

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

18. In her application for the visa, the visa applicant claimed that her date of birth was a specific date in the last quarter of 1999. The review applicant also gave this date as the visa applicant’s date of birth in her sponsorship form (Form 40CH).

19. At the hearing, both the review applicant and the visa applicant also gave this particular date as the visa applicant’s date of birth.

20. The Tribunal notes that the applicants have provided some documentary evidence to corroborate this claim. They submitted a copy of the bio-pages of the visa applicant’s passport issued by the Republic of South Sudan and a so-called ‘Age Assessment Certificate’ issued in respect of the visa applicant by the Ministry of Health for the Republic of South Sudan on 14 April 2014. Both documents state that the visa applicant’s date of birth is the particular date in 1999. The Tribunal gives some weight to this evidence.

21. The Tribunal also notes that, in this review, the review applicant submitted a signed and stamped ‘to whom it may concern’ letter, dated May 2018, from the headmaster of the Mahad Juba Clemi Primary and Secondary School in the Republic of South Sudan. The letter states that the visa applicant had been a pupil in ‘primary eight’ in 2012. If the visa applicant had been born in the last quarter of 1999 then, in 2012, she would have been 12 turning 13 years of age. The school records appear to evidence that, at the time of application on 5 January 2016, the visa applicant was under 18 years of age. The Tribunal gives weight to this evidence.

22. As the Tribunal had observed a file note on the Department’s file which relevantly states, ‘Applicant is listed as resident in Nairobi, however, no refugee registration information or visas have been provided’, at the hearing, the Tribunal asked the review applicant about this issue.

23. The review applicant gave oral evidence that the visa applicant was not registered with the UNHCR (that is, the United Nations High Commissioner for Refugees). She stated that the visa applicant had been born in Khartoum (South Sudan) but, at present, was living in Nairobi (Kenya). She said that the visa applicant was staying in Kenya lawfully. She said that she had a lot of documents in her possession and also stated that the Tribunal may find it useful if the visa applicant submitted a copy of her passport.

24. Having had the opportunity to hear the review applicant’s oral evidence by video over the course of a hearing of three hours’ duration, the Tribunal found the review applicant to be credible. The Tribunal accepts that the visa applicant has submitted some documentary evidence to corroborate her and the review applicant’s claim as to the visa applicant’s age. The Tribunal does not consider it necessary to request further documents be submitted to corroborate the visa applicant’s claimed date of birth.    

25. Based on the evidence before it, the Tribunal finds that, at the time of application, the visa applicant met r.1.14(a)(i). At the time of this decision, the visa applicant is over 18 years of age.

    Spouse or de facto partner – r.1.14(a)(ii)  

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

27. The review applicant and the visa applicant both gave credible oral evidence that, at the time of application and at the time of this decision and at all times in between these two dates, the visa applicant has not been married or in a de facto relationship. There is no evidence or information before the Tribunal to suggest otherwise. The Tribunal accepts the oral evidence. The review applicant told the Tribunal that she was unaware whether the visa applicant had a boyfriend. She said that if the visa applicant did have a boyfriend that she did not live with him. The review applicant and the visa applicant both told the Tribunal that the visa applicant lives with their mother and another female relative, whom they both named (some variations in this name—the review applicant called her Nyakoth whereas the visa applicant called her Nyalia—not troubling the Tribunal because the Tribunal accepts the review applicant’s oral evidence that ‘back home, you can have more than one name’).

28. Accordingly, the Tribunal is satisfied that r.1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – r.1.14(a)(iii)

29. 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.

30. At the hearing, the Tribunal asked the review applicant whether she was an Australian citizen or an Australian permanent resident. She gave oral evidence that she was an Australian citizen. No documentary evidence has been submitted to corroborate this claim. Notwithstanding, the Tribunal accepts the review applicant’s oral evidence.

31. The next issue for determination is whether the visa applicant is a ‘relative’ of the review applicant. Both the review applicant and the visa applicant claim, including in their oral evidence to the Tribunal, that they are sisters. Both told the Tribunal that they have the same father and the same mother (whom they both named), thus the claim is that they are full biological sisters. They also both told the Tribunal that they have another sister, named Angeline (pronounced Angelina by the interpreter), who is in between them in the birth order. The review applicant gave oral evidence that she did not know or could not recall Angeline’s date of birth and she said that they did not know Angeline’s whereabouts.

32. The Tribunal notes that the visa applicant’s Age Assessment Certificate lists her parents’ names. The names given in the certificate accord with the oral evidence given.

33. The Tribunal observed two file notes on the Department’s file. The note at folio 34, which appears to be undated, relevantly states:

    Sponsor did not declare the applicant as a sibling in her migration application but at 2005 migration interview advised her mother told her she had given birth to two children called Rose and Angeline.

34. The other file note, dated 6 June 2017 and at folio 35, relevantly states:

    In her migration interview on OSF2004/129086 on 24/4/2005 the sponsor declared that she has 2 sisters, Rose and Angeline but had never met them.

35. The Tribunal also noted that the written submissions dated 12 November 2020 stated that the applicants’ mother Nyayak Galtod was ‘almost 80 years old’.

36. Mindful of this information and this submission, at the hearing, the Tribunal asked a number of questions to understand better the claimed sibling relationship, including noting the 22-year age difference between the review applicant and the visa applicant.

37. When the Tribunal noted the lengthy gap between Nyayak’s first and last pregnancies, the review applicant said that she was unaware of the reason for the gaps in her mother’s pregnancies.

38. At the conclusion of the hearing, the representative submitted that African women do not necessarily have all their children a few years apart, as is usual in Western countries. The Tribunal accepts the validity of the observation. The claimed 22-year age gap between the two sisters is not a reason or part of a reason to affirm the decision under review.

39. The review applicant told the Tribunal that she did not know her mother’s date of birth nor her mother’s place of birth. She explained that, in South Sudan, records were not kept of such matters. However, she told the Tribunal, ‘I can confirm that she is my mother’. She said that her ‘guess’ was that her mother is around 75 years of age.

40. As noted earlier, the evidence before the Tribunal is that, at the date of this decision, the visa applicant is 21 years of age. If the applicant’s claimed mother is 75 years of age, or ‘almost 80’ as submitted in the written submissions, it would mean that Nyayak Galtod would have been aged 54 years or older when she gave birth to the visa applicant—something that is biologically very rare without the use of donor eggs.

41. As the Tribunal is satisfied as to the accuracy of the visa applicant’s date of birth, the Tribunal takes the view that Nyayak Galtod may be aged younger than the review applicant’s ‘guess’. The Tribunal considers that the uncertainty about Nyayak Galtod’s age is not a reason to doubt the claim that the review applicant and the visa applicant are full biological sisters or to affirm the decision under review.

42. The Tribunal asked the review applicant whether she had been living with the family when the visa applicant had been born. She said that she had. She said that the family had moved from their original place in South Sudan to Khartoum and that then she had gone to Egypt. She said that she had arrived in Australia in 2005. (The Tribunal notes that her movement records confirm this).

43. When the Tribunal then referred to the Department’s record that noted that she had said, in 2005, that she had never met her sister Rose (the visa applicant), the review applicant disputed the accuracy of the record. She said that that is not what she had said. Rather, she told the Tribunal that she had said that she was not aware of Angeline’s whereabouts—not that she had never met Angeline and the visa applicant.

44. The Tribunal considered whether it should request file number OSF2004/129086 from the Department so that it could check the Department’s record of its interview against the review applicant’s oral evidence. The Tribunal formed the view that such action was unnecessary. In this review, the Tribunal has given greater weight to the Tribunal’s finding that the review applicant is credible (as noted, based on observing the review applicant on video during a three-hour hearing) than it does to the brief descriptions in the file notes, extracted above, of what the review applicant is said to have said in 2005—over 16 years ago.

45. Further, the Tribunal accepts the validity of the representative’s submission that often African visa applicants are so keen to migrate to a country such as Australia that they are not sufficiently mindful of the importance of noting every other family member and relationship in their application documents.

46. The Tribunal also observed a file note on the Department’s file which suggested that DNA testing be offered to confirm the claimed relationship between the review applicant and the visa applicant. For this reason, at the hearing, the Tribunal asked the review applicant whether she and the visa applicant would be open to DNA testing to determine whether they are related as claimed. The review applicant gave credible oral evidence that she was willing to undertake a DNA test. In her own words, ‘I will do anything possible to reunite with my sister; I’ll do it’. In the circumstances of this case, noting the consistent and credible oral evidence that the review applicant and the visa applicant are sisters, supported by some other evidence to the same effect—namely the review applicant’s statements in 2005 that she has a sister called Rose, the Tribunal is satisfied as to the claimed relationship and does not consider it necessary to put the review applicant to the expense of obtaining DNA evidence.

47. Accordingly, the Tribunal is satisfied that 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 – r.1.14(b)

48. 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.

49. The Tribunal notes that, at the time of application, it was submitted both that the visa applicant’s parents were dead (in the Form 47CH—Application for migration to Australia by a child) and that they were of unknown whereabouts (in the Form 40CH—Sponsorship for a child to migrate to Australia). The Tribunal notes that the applicants were assisted by a registered migration agent at the time. The Tribunal presumes that the agent made an inadvertent error. The Tribunal notes that the applicants have been assisted by a different migration agent in this review.

50. As noted above, the delegate proceeded on the basis that the claim was that the visa applicant’s parents were both of unknown whereabouts.

1. The Tribunal observed a file note on the Department’s file (at folio 40) which states:

   No documentation has been provided to support the disappearance of the applicant’s parents noting that the sponsor declared them as resident in Sudan at the time of her migration and suggested that she maintained contact with them.

2. It will be recalled that the delegate refused the application for the visa because he was not satisfied that, at the time of application, the visa applicant met r.1.14(b).

3. In this review, it is claimed that, at the time of application on 5 January 2016, both parents were of unknown whereabouts but that, at the time of decision, the visa applicant’s father is dead and that her mother is permanently incapacitated.

4. With respect to the applicants’ father, Mr Clement Joul Dador (various spelling and variations), the Tribunal notes that the earlier mentioned school record also states:

   As school Head Master, I know her parents before 2013 violence and crisis in the country and her father indeed was kidnapped.

5. It was submitted, in the written submissions of 12 November 2020, that the applicants’ father had been found in a hospital in Egypt, that the review applicant sent money so that Mr Dador could be treated but that he died in the hospital on 14 June 2017. Further, it was submitted:

   According to the Review applicant, after Clement’s death she was in the state of deep psychological shock and due to this she did not inform us or the Department of Home Affairs about Clement’s death.

   The Review applicant explained to us that after Clement’s death she did not want to talk about it with any one as she could not believe that she found her father, but he was taken from her again due to death.

   Only years after she came down, accepted the fact of death and is able to think straight now.

6. The review applicant submitted a copy of a stamped document from the Cairo Medical Centre which is in Arabic. An English translation was also provided. The document is a death notice or certificate, dated 14 June 2017, and issued by the Cairo Medical Centre in respect of ‘Clement Juol Dador Tok’. He is said to have died on 14 June 2017, at the age of 67 years, of heart failure and ‘multiple failure in body functions and failure in higher brain functions’.

7. The review applicant also submitted a signed and stamped ‘to whom it may concern’ letter from the Deacon of a named Catholic church in Dandenong, dated 18 April 2018. The Deacon explained that the review applicant was a part of the church community. The letter continued:  

   Lina’s father Clement Jul Dador Tuo passed away last year on 14th June 2017 in Cairo, Egypt a Prayer Service was held for the repose of his soul at [the church] on 24th June 2017.

8. At the hearing, the Tribunal asked the review applicant how it was that her father had gone from being of unknown whereabouts to being found in a hospital in Egypt. The review applicant gave oral evidence that, in 2013, a ‘sort of war’ broke out in South Sudan and that Nuer people were targeted and massacred. She said that many people ran away. She said that her father, her mother and the visa applicant had all parted ways at the time because they had all been in different places, saying that her father had been at work, her mother at the market and the visa applicant at school. She said that, soon after the ‘incident’, when she had learned of the visa applicant’s whereabouts that she had arranged to have her moved to Nairobi. She said that, at first, her father had run away to a different place in South Sudan and that it was not until later that he had gone to Egypt. She said that her father had high blood pressure, diabetes and a wound and that people he had met had told him to reach out to the review applicant in Australia.   

9. The review applicant gave oral evidence that a service had been held at her church to mark her father’s death and she said that she had not informed her representative or the Department about her father’s death for the reasons given in the written submissions. The Tribunal observed the review applicant weep when giving her oral evidence about what had happened to her father. The Tribunal found the review applicant to be credible in her oral evidence about what had happened to her father, his death, and her reaction to the news of his death. The Tribunal also accepts the review applicant’s oral evidence that she has had, and continues to have, a number of responsibilities. It is possible that this may have also been a reason for the review applicant’s delay in informing her representative and the Department of the change of circumstances with respect to her father. 

10. The visa applicant told the Tribunal that, after the ‘incident’ in South Sudan (in 2013), she had been brought to Kenya and that they did not know her father’s whereabouts. She said that, later, they had learned that their father had been located but that he was in bad health. She said that he had been taken to Egypt for treatment but had died. She said that her father died on 15 June 2017.

11. The Tribunal considers that the review applicant and the visa applicant have given broadly consistent oral evidence, with the review applicant giving more detailed evidence. The Tribunal found both to be credible and notes that there is some corroborating documentary evidence of the applicants’ father’s disappearance after the violence in 2013 and that he died in 2017.

12. Based on the evidence before it, the Tribunal is satisfied that, at the time of application on 5 January 2016 (a few years after the ethnic conflict first started in 2013), the applicants’ father was of unknown whereabouts and that, at the time of this decision, the applicants’ father has died.

13. With respect to the applicants’ mother, Ms Nyayak Gai Tot (various spelling and variations), it was submitted, in the written submissions of 12 November 2020 that:

    The Review applicant also managed to find her and the visa applicant’s mother Nyayak Galtod (Nyayak). Nyayak is in Kenya now. However, Nyayak has severe health issues and due to them and also her age (almost 80 years old) she is not capable of caring for the visa applicant.

14. The review applicant submitted a signed and stamped medical report, dated 5 November 2020, from a named medical officer of the Maria Immaculata Hospital in Nairobi, Kenya. The report states that ‘Nyayak Gaitod’ is an ‘elderly woman’ who is ‘suffering from hypertension which has led to eye condition and she is under medication for a period of two years’. She was described as a ‘long-time client’.

15. At the hearing, the review applicant told the Tribunal that, at the time of the visa applicant’s application for the visa, their mother had been of unknown whereabouts. She said that, later in 2019, her mother was located in Uganda. She said that her mother was ‘in bad shape’ and she said that some other people had alerted her to her mother’s whereabouts. She said that, in 2019, she had asked some relatives to try to take her mother to Kenya where the visa applicant and the other female relative were living. She said that she had travelled overseas herself to visit the family in Nairobi and in order to supervise the treatment of her mother. 

16. She said that Nyayak continues to live with the visa applicant and their other female relative in Nairobi. The review applicant said that she was the person providing financially for the household, providing money for rent and food. The Tribunal notes the evidence of multiple money transfers sent by the review applicant to the visa applicant at various dates in 2014, 2015, 2016 and 2017 that was provided to the Tribunal. This documentary evidence supports the review applicant’s claim. The review applicant gave oral evidence that their other relative does the housework, as she is older than the visa applicant. She said that their mother is afflicted with the problems of old age, including diabetes, heart problems, limited mobility, and failing eyesight due to her diabetes. She said that the visa applicant provides care to their mother, including taking her to the hospital.

17. The Tribunal asked the visa applicant when she had learned of her mother’s whereabouts and when they had been reunited. The visa applicant gave oral evidence that she had received information of her mother’s whereabouts from her cousin. She said that her cousin had then called the review applicant and that they arranged for their mother to be brought to Nairobi. She said that her mother had been in a ‘very bad way’ and that she has aged. She said that her mother received some treatment and had improved for a while but that she has not recovered fully as she is diabetic and has high blood pressure. She said that her mother cannot care for herself or do the work that a healthy person can do. She described her mother as being ‘completely incapacitated’ and said that her mother could not provide care for herself or for the visa applicant. The visa applicant told the Tribunal that the review applicant was the person providing for their accommodation and ‘upkeep’.   

18. Permanent incapacity for the purposes of r.1.14 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.[2] In that context, incapacitation includes, but is not limited to, impairment of the physical and mental faculties required to care for a child. A parent’s incapacity must be related to their ability to care for the child.  

    [2]        Nguyen v MIMA (1998) 158 ALR 639 at 646.

19. It was also submitted, in the written submissions, that the review applicant was not able to provide further medical documents pertaining to her mother’s age and health condition because of COVID 19 restrictions. The representative requested the Tribunal to provide the review applicant with an extension of time so that she could obtain and submit further documents to the Tribunal. The Tribunal has considered the request but considers that it is unnecessary to grant further time for more documentary evidence to be submitted as the Tribunal considers that it has sufficient evidence to make a decision now.

20. The Tribunal accepts the applicants’ credible oral evidence, supported to a small degree by the medical evidence, that their mother has a number of physical health conditions and that she requires care herself such that she is not in a position to provide care to the visa applicant. The Tribunal accepts the claim that, at the time of this decision, the applicants’ mother is permanently incapacitated.

21. Having considered and weighed all the evidence cumulatively, the Tribunal is satisfied that r.1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests of the applicant – r.1.14(c)  

22. 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.

23. Towards the end of the hearing, the visa applicant told the Tribunal that her situation was very difficult and that she did not have access to opportunities living in Africa, in her own words, there was ‘no future’ for her there. She said that she was reliant on the review applicant, whom she noted also had challenges of her own. She asked the Tribunal for its support.    

24. There is nothing in the information or evidence before the Tribunal to suggest that the grant of a visa to the visa applicant would not be in her best interests. Indeed, to the contrary, it appears that it would be in her best interests.

25. Accordingly, the Tribunal is satisfied that r.1.14(c) was met at the time of application and continues to be met at the time of decision.

    CONCLUSION

26. Given the findings above, cl.117.211 is met. In addition, 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.

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

    DECISION

28. 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.

    Justine Clarke
    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.