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

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).
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.
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
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.
The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farah (Migration)

Details

AGLC: Farah (Migration) [2025] ARTA 1333
Case: [2025] ARTA 1333
Decision Date: 1 July 2025

CaseChat Overview and Summary

The case involves a review of a decision regarding the application for a subclass 117 visa, commonly known as an Orphan Relative visa, by two individuals, referred to as the visa applicants. Their application was assessed and denied by a delegate, and they sought a review by the Administrative Appeals Tribunal (AAT). The primary issue for the AAT was whether the visa applicants met the eligibility criteria to be considered orphan relatives under the Migration Act and Regulations. Specifically, the court had to determine if the visa applicants were orphans, if they were related to the sponsor, and if they met the age requirement at the time of application.

The court examined the evidence provided by the applicants, which included DNA test results confirming their sibling relationship with the sponsor, statutory declarations from family members, and statements from the sponsor who also claimed to be an orphan relative and had their visa granted. The applicants argued that their parents were deceased or of unknown whereabouts, but the delegate found that the provided evidence, primarily statutory declarations, was insufficient to substantiate these claims. The delegate required more concrete evidence such as death certificates, police reports, or burial certificates, which the applicants did not provide. The AAT had to weigh the credibility and consistency of the evidence presented, and assess whether the applicants met the statutory requirements.

The AAT found that the statutory declarations and statements, though numerous, did not meet the standard of evidence required by the delegate. The applicants had not provided alternative evidence to substantiate their claims regarding the whereabouts and status of their parents. However, the AAT did find that the applicants were under 18 years old at the time of application, satisfying one of the eligibility criteria. Given the lack of sufficient evidence to support the claims of the applicants' parents' deaths or disappearance, the AAT upheld the delegate's decision not to grant the visa. The AAT, however, remitted the decision to the delegate for reconsideration in light of the credible and consistent evidence provided by the applicants and the sponsor regarding their relationship and the sponsor’s own visa approval based on the same facts.

The AAT did not make a final decision on the grant of the visa but instead directed the delegate to reconsider the application with the understanding that the applicants had provided consistent and credible evidence, and there was no contrary information presented. This reconsideration was to be based on the evidence of the sibling relationship, the sponsor's approved visa, and the applicants' age at the time of application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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. 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) 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)

Ratio Decidendi

Legal Principle Established

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