Farah (Migration)

[2025] ARTA 1333

FARAH (MIGRATION) [2025] ARTA 1333 (1 JULY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Mohamed Abdirizak Farah

Visa Applicants:  Mr Ahmed Abdirizak Farah
Mr Abdirahman Abdirizak Farah

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2401626

Tribunal:Kira Raif

Place:Sydney

Date:1 July 2025

Decision:The Tribunal sets aside the decision under review and 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 01 July 2025 at 5:38pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – DNA test results confirm sibling relationship – father of unknown whereabouts and mother deceased – no records for father and no death certificate for mother – separation of family at time of mother’s death, recent reconnection and financial support – statutory declarations and statements from applicants, sponsor and other relatives – sponsor’s own visa granted on same facts – best interests of applicants – consistent and credible evidence and no contrary information – applicants now turned 18 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cls 117.111, 117.211, 117.221

CASE
Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF 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 4 December 2023 to refuse to grant the visa applicants Child (Migrant) (Class AH) Subclass 117 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants are nationals of Somalia, born in January 2007 and December 2003 respectively. They applied for the visas on 22 September 2021. The delegate refused to grant the visa on the basis that cl. 117.211 was not met because the delegate was not satisfied the visa applicants were orphan relatives of their Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 12 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s aunt Ms Fartun Farah. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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 which 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.

6. ‘Orphan relative’ is defined in Regulation 1.14 as follows:

   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.

7. 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. 

   Primary decision

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the visa applicants provided their Refugee ID cards, the sponsor’s identity documents and a declaration from the sponsor. The visa applicants claimed that their father Abdirizak Farh Hijir is of unknown whereabouts and their mother Halima Abdi Takai is deceased. The visa applicants provided evidence of DNA test confirming the sibling relationship with the sponsor.

9. In his declaration, the sponsor outlined the circumstances relating to the visa applicants’ parents but the delegate noted that other than the statutory declarations, there was no evidence to support the claim that the visa applicants’ father was of unknown whereabouts and their mother deceased and the delegate invited the visa applicants to provide further evidence.

10. The visa applicants subsequently provided a submission claiming that their parents’ death records were not available. The visa applicants provided further statements from family members including a declaration from the visa applicants’ aunt who also outlined the circumstances of her brother’s disappearance and the death of his wife. A declaration from another relative indicated that the applicants’ father was murdered in September 2009. The sponsor provided a declaration stating the mother died while travelling and the father went missing and was later confirmed dead.

11. The delegate noted that in support of the claimed deaths of the parents, the visa applicants provided a number of statutory declarations and statements, however the delegate found that such evidence alone was not sufficient to support the claims that both parents are deceased or of unknown whereabouts. The delegate noted that the visa applicants were invited to provide evidence other than death certificates, such as police reports, burial certificates, photos of funeral, doctors’ reports but no such evidence has been presented. The delegate was not satisfied that the visa applicants’ mother was deceased and that their father was either deceased or of unknown whereabouts. The delegate was not satisfied the visa applicants met r. 1.14 and cl. 117.211.

    Are the visa applicants orphan relatives of an Australian relative?

    Age – reg 1.14(a)(i)

12. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicants provided with their applications Refugee ID documents indicating they were they were born in December 2003 and January 2007 respectively. The application for the visa was made in September 2021. The Tribunal is satisfied the visa applicants had not turned 18 when the application was made. Accordingly, reg 1.14(a)(i) was met at the time of application.

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

13. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The visa applicants indicated on the application form that they never had a spouse or de facto partner. There is nothing to contradict that evidence. Accordingly, reg 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)

14. 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.

15. The visa applicants provided with the application results of DNA test confirming their sibling relationship with the sponsor. The Tribunal is satisfied on the basis of that evidence that each of the visa applicants is a sibling of the sponsor and a relative of the sponsor within the meaning of r. 1.03. 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)

16. 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.

17. The review applicant provided a number of documents to the Tribunal on 28 April 2025, many of which were copies of the documents that were previously submitted by the visa applicants. The review applicant provided a copy of his November 2023 declaration confirming his sibling relationship with the visa applicants. The review applicant states that his family fled the violence and in a road accident, the truck they were travelling in overturned and his mother and two siblings died and were buried on the side of the road. The review applicant states that they have tried to find his father and asked family and friends and later his mother’s cousin told him that his father died in 2009 and she attended his funeral. The review applicant states that his mother died in an accident on the road and there is no death certificate but he saw her being buried. They do not have a death certificate for his father and his death was not officially reported as this is not done in Somalia. The review applicant states that he was granted the orphan relative visa as his parents have died.

18. The review applicant provided evidence of his own visa grant and statements from his aunts, Fartun Hajir Farah and Qamar Abdi Idle who also confirmed the deaths of the children’s parents. The review applicant provided evidence of money transfers made to the visa applicants.

19. In his submission to the Tribunal of 27 May 2025 the review applicant also described the family’s circumstances, stating his mother died in an accident around June 2011 and his father went missing around January 2008. The review applicant states that no death certificates are available but a number of statutory declarations and statements were provided to the Department to confirm the deaths of the parents. The review applicant refers to lack of formal documentation in Somalia.

20. The review applicant states that in November 2011 his aunt sponsored some of the children for Orphan Relative visas and the visas were granted, with the sponsor arriving in Australia in December 2013. He states that to be granted the visa, the delegate was satisfied in 2013 that his mother was deceased. With respect to his father, the applicant states that when he made his own application, his father’s whereabouts were unknown and since that time his death has been confirmed. The review applicant describes the circumstances of finding out about his father’s death.

21. In oral evidence the review applicant said that he was granted the Orphan Relative visa on the basis that his mother had died and the whereabouts of his father were unknown. The review applicant states that the two visa applicants were separated from the rest of the family and he did not know the whereabouts of his two brothers. For that reason, they could not be included in the Australian visa application that he and his other siblings have made and were not granted the visas at the same time. The review applicant states that in 2019 he was able to re-establish contact with the visa applicants through his mother’s cousin as the family has been trying hard to find their location.

22. The review applicant was not sure what documents were submitted in support of his own visa application in relation to the parents but said that there were no death certificates available. Ms Fartun Farah also told the Tribunal that when she sponsored the sponsor and other children, there was no proof of parents’ death and the visas were approved on the basis of statutory declarations only. Ms Farah stated that she did not include other children in the initial application as their were living elsewhere and had lost contact with the family.

23. The review applicant told the Tribunal that the family had been trying to locate his father and Ms Abdi informed them that the father had been killed by Al Shabab around 2008. He states that it is difficult to obtain written evidence of the death and the only evidence they have is oral testimony of a relative who saw the dead body of his father and attended his funeral. The review applicant said that communication at the time was difficult and he found out about his father’s death around 2019. When asked why the visa applicant claimed in the application in 2021 that the father’s whereabouts were unknown, the review applicant stated that he was confused and did not find out about the father’s death until later.

24. The review applicant states that his mother died in a car accident and was buried on the road. He states that there was no evidence of her death at the time as he was young and did not have a phone and the review applicant states he would not make up something like that.  Ms Fartun Farah’s oral evidence was generally consistent with the review applicant’s oral evidence.

25. In considering the evidence of the parents’ deaths, the Tribunal shares the delegate’s concerns that there is no documentary evidence relating to the deaths of the visa applicants’ parents. However, if the review applicant’s claims are true, then it is plausible that there would be no death records or other formal evidence available and that the most useful evidence available to the visa applicants would be witness statements. These have been presented to the Tribunal. It is possible that the evidence of these witnesses, as well as of the visa applicants and the review applicant is untruthful and it is equally possible that they have provided a truthful account of what had happened to their parents. The Tribunal is mindful that there is nothing to suggest the claims have been fabricated or that the applicants and all declarants lack credibility.

26. In the circumstances of this case, the Tribunal has decided to give weight to the fact that the review applicant has been granted an Orphan Relative visa and he is the full sibling of the visa applicants. That is, a determination was made at the time of visa grant that the sponsor’s (and therefor the visa applicants’) parents were of unknown whereabouts or deceased. There is nothing before the Tribunal to establish that the evidence that led to that finding has been untruthful or inaccurate.

27. The Tribunal also gives some weight to the evidence of third parties who attest to the deaths of the parents.

28. On balance, the Tribunal is satisfied that both of the visa applicants’ parents are deceased at the time of this decision and, at the time of the application, one was deceased and the whereabouts of the other were unknown. That is, the Tribunal is satisfied, on balance, that the visa applicants met r. 1.14(b) at the time of application and continue to meet at the time of the decision.

    Best interests – reg 1.14(c)

29. 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.

30. The review applicant states that when the visa applicants were younger, they lived with their grandmother and since he reconnected with them, he moved them to their present location and has been supporting them financially, sending money on a monthly basis.

31. The review applicant told the Tribunal that if the visa applicants travel to Australia, they will live with their aunt who has a 5 bedroom  house. The elder visa applicant will start working and the younger one will study. The review applicant told the Tribunal that he is working and has the means to support his brothers financially. The review applicant stated that he has no criminal record. Ms Farah confirmed that her house is available for the visa applicants.

32. The Tribunal finds that there is no compelling reason to believe that the grant of the visas would not be in the best interests of the visa applicants. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

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

    Conclusion

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

    DECISION

35. The Tribunal sets aside the decision under review and 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.

    Date(s) of hearing  12 June 2025

    Representative for the Applicant:           Ms Tania Irena Mykyta