Gbala (Migration) - [2025] ARTA 307

GBALA (MIGRATION) [2025] ARTA 307 (7 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Yoryor Gbala
Visa Applicants:  Mr Joe Gbalah
Mr Elvis Gbala
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2422610

Tribunal:General Member J Clarke
Place:Melbourne
Date: 7 March 2025
Decision:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, in accordance with the order that each visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations;
·cl 117.221 of Schedule 2 to the Regulations; and
·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations.

Statement made on 07 March 2025 at 4:41pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – sponsor half-sister of applicants – parents dead or of unknown whereabouts – money transfers after claimed dates of death and disappearance – medical certificate of death provided with application and official certificate after receiving department’s natural justice letter – money transfers to people with similar names as parents, and identity documents provided – aunt’s attempts to trace father – Red Cross tracing case now closed – DNA testing supports claimed relationships – best interests of applicants – socio-economic and security conditions – older applicant now over 18 – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 348(1)
Migration Regulations 1994 (Cth), rr 1.03, 1.14(b), Schedule 2, cls 117.111, 117.211(a), 117.221, 117.223, Schedule 4, criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is a combined application for review of two decisions made on 27 June 2024 by the same delegate of the Minister for Home Affairs to refuse to grant the two visa applicants Child (Migrant) (Class AH) Subclass 117 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
At the time of this decision, the review applicant, Ms Gbala, is a 30-year-old Australian citizen.[1] It is claimed that she is the half-sister of the visa applicants, as they share the same mother, but the review applicant’s father is not the father of the two visa applicants.
[1] A copy of the bio-pages of her Australian passport is on the Department’s file.
On 2 February 2022, the visa applicants Joe and Elvis—who are claimed biological brothers—applied for the visas. The review applicant is the sponsor for each visa applicant.
At the time of application for the visas, 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 (Orphan Relative) visa.
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 is a time of application criterion, and cl 117.221 and cl 117.223, which are time of decision criteria.
Clause 117.211(a) requires that, at the time of application, the visa applicant is an orphan relative of an Australian relative of the visa applicant. 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 years of age: cl 117.221.
‘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. It is claimed that the review applicant is the relevant Australian relative.
To be an orphan relative for the purpose of the definition in reg 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 also 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)).
The text of cl 117.223 is extracted in each of the delegate’s decisions made on 27 June 2024.
The review applicant provided the Tribunal with copies of the two decision records, that is, where each visa applicant was the sole visa applicant. In each case, the same delegate refused to grant each visa applicant the visa on the basis that they did not satisfy the requirements of cl 117.211 and cl 117.223.
With respect to cl 117.211, in each case, the delegate was satisfied that the respective visa applicant met the requirements in reg 1.14(a)(i), (ii) and (iii) but was not satisfied that they met the requirement in reg 1.14(b)—that is, that they could not be cared for by their mother Roseline Gbalah because she is dead and by their father Ephraim Gbalah because he is of unknown whereabouts—because the delegate did not accept the veracity of the review applicant’s claims that money transfers sent after the date of Roseline’s claimed death and Ephraim’s claimed disappearance were not sent to the visa applicants’ parents. The review applicant claimed that the money had been sent to persons with similar names to the visa applicants’ parents, being persons whom the sponsor trusted to withdraw the funds and give to the visa applicants’ guardian Ms Kou Lablah. The delegate was critical that identification cards had not been provided to support the claim that the funds had been transmitted to persons who were not the visa applicants’ parents.
With respect to cl 117.223, the delegate made their findings because they were not satisfied that, in each case, the respective visa applicant met Public Interest Criterion (PIC) 4020. PIC 4020 is extracted in the attachment to this decision. Specifically, in each case, the delegate found that the respective visa applicant did not meet PIC 4020(1) because the Department considered that certain documents—the death certificate that had been submitted in respect of the mother and the Australian Red Cross reports that related to the father’s unknown whereabouts—were of a ‘non-genuine’ nature; indeed, bogus documents. In each case, the delegate explained that the Pretoria office had informed the Department that the mother’s death certificate could not be verified with the local Liberian authority because it is not an official death certificate. Further, the Department had identified financial information which was inconsistent with the information in the death certificate and the Australian Red Cross reports because the financial information indicated that ‘a family relative in Australia transferred funds to [each] applicant’s mother (Roseline Gbalah) after the claimed date of her death, as well as to [each] applicant’s father (Ephraim Gbalah) after the claimed date of his disappearance’.
In each case, the delegate considered whether the requirements in PIC 4020(1) should be waived in accordance with PIC 4020(4). However, in each case, the delegate considered that no information had been given indicating that the visa applicant was seeking a waiver of PIC 4020. Accordingly, in each case, the delegate concluded that they were not satisfied that there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justified the grant of the visa.
In each case, the delegate did not assess whether any of the provisions for a Subclass 101 (Child) visa or for a Subclass 102 (Adoption) visa were met.
On 12 July 2024, the review applicant applied to the Administrative Appeals Tribunal (AAT) for the review of the two primary decisions. The review applicant was represented in relation to the review.
On 30 August 2024, the AAT invited the review applicant to a video hearing on 25 September 2024.
On 24 September 2024, the representative requested that the hearing be postponed as the offshore witnesses required an interpreter in the Mano and English languages and because ‘[t]he IDs that they are in the process of obtaining for Epearim [sic] Gbala [sic] and Roseline Gbalah [sic] will take some time (about a fortnight) as the people have relocated’.
Later that day, the presiding Member agreed to the postponement request and relevant correspondence was sent informing of this and that the hearing had been rescheduled for 13 November 2024.
On 13 October 2024, the AAT was abolished. On 14 October 2024, the Administrative Review Tribunal (the Tribunal) was established. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), an application for review to the AAT that was not finalised before 14 October 2024 is taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Section 348A(1) of the Act provides, ‘[t]he Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act’. ART Act is defined in s 5(1) as meaning the Administrative Review Tribunal Act 2024 (Cth).
On 6 November 2024, the representative submitted written submissions in support of the case.
On 13 November 2024, the Tribunal had to cancel the hearing that was scheduled for later that day due to interpreter unavailability.
On 21 November 2024, the Tribunal invited the review applicant to a video hearing on 6 December 2024.
On 5 December 2024, the Tribunal had to cancel the hearing that was scheduled for the next day due to interpreter unavailability.
On 13 February 2025, an officer of the Tribunal informed the representative that a Mano interpreter had been secured and queried whether the review applicant could attend a video hearing on 19 February 2025. Later that day, the representative confirmed in writing that the review applicant was available to attend a hearing on 19 February 2025. Following receipt of this correspondence, the Tribunal invited the review applicant to the rescheduled hearing.
On 19 February 2025, the review applicant appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence, by video, from the visa applicants Joe and Elvis and from the review applicant’s family member Ms Kou Lablah. The Tribunal hearing was conducted with the assistance of an interpreter in the Mano and English languages. The representative attended the hearing by video from the same location as the review applicant. The interpreter attended the hearing by video from a different location.
During the course of the hearing, the representative submitted copies of birth certificates for ‘Roseline Gbala’ and ‘Ephraim Gbalah’—the ‘people that have been sent money to with similar names of Joe and Elvis’ parents’.
Later that same day and after the hearing, the representative submitted further written submissions.
On 21 February 2025, the representative submitted copies of ‘ID cards for the people in question that were receiving money with similar names to children’s parents’.
For the following reasons, the Tribunal has concluded that the decisions under review should be set aside, and the matters should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In considering and deciding the various issues, the Tribunal has had regard to all documents on the Department’s files and the Tribunal’s file as well as to the oral evidence given at the hearing.
Consideration of cl 117.211 and cl 117.221
The first issue for determination is whether, at the time that the applications were made for the visas on 2 February 2022, Joe and Elvis each met cl 117.211. In the circumstances of this case, the Tribunal considers that it is also appropriate to make findings about whether, at the time of this decision, they each meet cl 117.221 as well.
Are Joe and Elvis each an orphan relative of an Australian relative?
For the reasons below, the Tribunal finds that:
·at the time of application for the visas on 2 February 2022, Joe and Elvis were each an orphan relative of an Australian relative and thus met cl 117.211(a);
·at the time of this decision, Elvis is an orphan relative of an Australian relative and thus continues to satisfy the criterion in cl 117.211. Therefore, he meets cl 117.221(a); and
·at the time of this decision, Joe does not continue to satisfy the criterion in cl 117.221 only because he has turned 18. Thus, he meets cl 117.221(b).
Age – reg 1.14(a)(i)
Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.
In each respective primary decision, the delegate noted that each visa applicant had lodged copies of their birth certificate and Liberian Passport in support of their claimed date of birth and age. Based on this evidence, the delegate had been satisfied that, at the time of application for the visas on 2 February 2022, Joe and Elvis were each under 18 years of age (Joe was 17 years of age and Elvis was 14 years of age). The delegate found that, in each case, reg 1.14(a)(i) was met.
In this review, it was reiterated in the submissions of 6 November 2024 that, at the time of application, both visa applicants were under 18 years of age and the Tribunal was referred to the copies of the bio-pages of the passports that had previously been provided.
At the time of this decision, there is no information or evidence before the Tribunal to suggest that each visa applicant’s date of birth is not what they claim it to be. Accordingly, the Tribunal did not consider it necessary to raise this issue at the hearing.
Based on the evidence before it, the Tribunal finds that, at the time of application, reg 1.14(a)(i) was met by both visa applicants. At the time of this decision, Elvis is 17 years of age and so continues to meet reg 1.14(a)(i). The evidence is that, at the time of this decision, Joe is 20 years of age.
Spouse or de facto partner – reg 1.14(a)(ii)
Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.
In each respective primary decision, the delegate noted that each visa applicant had, at Question 14 of Form 47CH—Application for migration to Australia by a child, declared that, at that time, he had never been married or in a de facto relationship. Based on this evidence, the delegate had been satisfied that, at the time of application on 2 February 2022, Joe and Elvis each met reg 1.14(a)(ii).
At the hearing, the review applicant gave credible oral evidence that neither visa applicant was or had been married or was or had been in a de facto relationship. The Tribunal accepts this oral evidence.
Both Joe and Elvis also respectively gave oral evidence that, at the time of the hearing, they were not married or in a de facto relationship. The Tribunal accepts this oral evidence.
There is no information or evidence before the Tribunal to suggest that either of the visa applicants had a spouse or de facto partner at the time of application or that they have one at the time of this decision.
Accordingly, in each case, 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)
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.
As noted earlier, the Tribunal is satisfied that the review applicant is an Australian citizen. As was also noted earlier, it is claimed that the review applicant is each visa applicant’s maternal half-sister.
In each respective primary decision, the delegate noted that a DNA testing report supports the claimed biological relationship between the review applicant and each visa applicant. Based on this evidence, the delegate had been satisfied that, at the time of application on 2 February 2022, Joe and Elvis each met reg 1.14(a)(iii).
The DNA test results are on the Department’s files. The Tribunal accepts and gives great weight to the evidence contained in the DNA test results.
Based on the evidence, the Tribunal is satisfied that Joe and Elvis are each a maternal half-brother of the review applicant. Accordingly, in each case, 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)
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.
Is Roseline Gbalah (the claimed mother of both Joe and Elvis) dead?
At the hearing, Joe gave oral evidence that his mother passed away in 2008, when he said that he had been very young. Elvis told the Tribunal that his mother had died when he was ‘small’. He said that he does not know any other information.
Ms Kou Lablah told the Tribunal that the visa applicants’ mother had not been well in the lead up to her death. The Tribunal asked her if she was able to tell the Tribunal which year Roseline Gbalah had passed away, but she said that she did not record the year.
In this review, it was submitted in the written submissions of 6 November 2024 that:
Roseline Gbalah, the children’s mother, passed away in [2008].[2] In Liberia, it is not customary to register deaths and obtain an official death certificate immediately, with a medical certificate often serving as sufficient proof of death. Kou Lablah, in assisting with the children’s visa applications, mistakenly believed the medical certificate was adequate and did not question whether it was an official death certificate. It was only upon receiving the Department’s natural justice letter dated 28 February 2024, which requested verification of the medical certificate, that it became clear that the certificate had not been recognized as an official death certificate by the Liberian authorities. This led to the official registration of the death, and the issuance of a formal death certificate (Death Certificate Reg No 30-20200324-101064020). We respectfully submit that this certificate is valid and genuine, as it was based on medical documentation provided by the hospital.
[2] The submissions contained a typographical error—2018—when the documentary evidence is that the visa applicants’ mother passed away in 2008.
The Tribunal notes that the formal death certificate (Death Certificate Reg No 30-20200324-101064020) was submitted to the Department prior to the delegate making their decisions. There is no information before the Tribunal that indicates that the Department sought to have the authenticity of this death certificate verified.
Rather, the delegate appears to have given greater weight to the evidence which the Department had accessed which ‘indicated that a family relative in Australia transferred funds to the applicant’s mother (Roseline Gbalah) after the claimed date of her death’. The copy of the Department’s file which was provided to the Tribunal does not contain a copy of the evidence which the Department is said to have accessed. Accordingly, the Tribunal does not know how the surname was spelled—with or without an ‘h’ at the end.

As has been explained, the delegate did not accept the review applicant’s evidence (in her statutory declaration made on 27 March 2024) that the money transfers that were sent to Liberia do not relate to the visa applicants’ mother Roseline Gbalah (with an ‘h’ at the end of the surname) but rather to a person with a similar name—‘Roseline Gbala’ (without an ‘h’ at the end of the surname).
In the review applicant’s statutory declaration made on 27 March 2024, which is on the Department’s file, she had declared that it had been difficult for Kou Lablah, the person caring for the visa applicants, to receive money from the remittance bank because she had limited identification. She explained that,
Roseline Gbala is one of those people within the community, who happens to be older person with acceptable identification card to receive money from the bank. So, each time I will send funds in her name, she collected the funds and pass it on to my aunt Kou Lablah to look after Joe Gbalah and Elvis Gbalah.
At the hearing, the review applicant gave consistent oral evidence, telling the Tribunal that she had had trouble sending money through to her relative for the care of the visa applicants so she had sent money through to other people—including this woman—because they had the relevant identification documents.
As has been explained, when the matters were before the delegate, the delegate was critical that an identification card had not been provided for ‘Roseline Gbala’ to support the claim that the funds had been transmitted to a different person to the visa applicants’ mother.
In this review, the representative submitted a birth certificate for ‘Roseline Gbala’ (stamped BC1697948) and a copy of her current national identification card said to be issued by the Republic of Liberia (copies of both sides). Both documents list ‘Roseline Gbala’ as having a date of birth on a particular date in 1990. The Tribunal notes that the death certificate for Roseline Gbalah—the visa applicants’ mother—states her date of birth as having been on a particular date in 1970.
Having had the opportunity to hear oral evidence from the review applicant, the visa applicants and Ms Lablah directly in a video hearing, the Tribunal found them each to be credible and accepts their oral evidence.
The Tribunal notes here that it accepts the written submissions of 6 November 2024 that, if the review applicant’s application for a Subclass 202 visa—which was lodged in 2008 when she was 14 years of age—listed her mother as ‘Musa Gbala’ and not ‘Roseline Gbalah’ that this was ‘an error caused by cultural norms, as Musa Gbala was her stepmother, and her biological mother, Roseline Gbalah, had passed away’ and it was an error made by someone else as she had not been the person to fill out the application. The review applicant had earlier made consistent claims in her written statement dated 29 May 2024 which is on the Department’s file. At the hearing, she gave credible oral evidence that she had not been that involved with the lodgement of this application. She said that she recalls attending an office, but she said that questions had been asked of her father and perhaps her two oldest brothers. She told the Tribunal that it is possible that, in that application, her step-mother ‘Musa Gbala’ may have been entered as her mother. She said that, back home in Africa, her step-mother would not be referred to as her step-mother but rather as her ‘Mum’. She said that, even now, she refers to this woman as ‘Mum’. The Tribunal found the review applicant to be credible and accepts her evidence and explanation. The Tribunal finds that the fact that, in the review applicant’s application for a Subclass 202 visa, ‘Musa Gbala’ may have been listed as the review applicant’s mother rather than Roseline Gbalah is not a reason to impugn the review applicant’s general credibility and therefore is not a reason or a part of the reason to affirm the decisions under review.
The Tribunal notes, accepts and gives great weight to the death certificate that evidences that Roseline Gbalah died in 2008. The Tribunal also notes, accepts and gives great weight to the birth certificate and current national identification card for ‘Roseline Gbala’.
In view of the evidence before the Tribunal, the Tribunal finds that the visa applicants’ mother Roseline Gbalah died in 2008 and that, at a later date or dates, the money that the review applicant sent for use for the care of the visa applicants was sent to ‘Roseline Gbala’, who is a different person to the visa applicants’ mother, and that the money was sent to her because of the difficulty in sending it directly to the children’s guardian Kou Lablah.
Having considered and weighed all the evidence cumulatively, the Tribunal finds that both at the time of application for the visas on 2 February 2022 and at the time of this decision, each of the visa applicants could not be cared for by their mother as she was deceased.
Is Ephraim Gbalah (the claimed father of both Joe and Elvis) of unknown whereabouts?
At the hearing, Joe gave oral evidence that he did not really know his father. He told the Tribunal that his aunt—presumably a reference to his great aunt Ms Kou Lablah—tried to locate his father but had not found him. Elvis gave oral evidence that he has no information about his father.
The Tribunal notes the various claims made in the review applicant’s statutory declaration made on 27 March 2024, which is on the Department’s file. The delegate noted a number of these claims in the two primary decisions:
it is stated that the applicant’s and sponsor’s mother (Roseline Gbalah) separated from the applicant’s father Ephraim Gabalah whilst pregnant with [Elvis], due to marital problems. It is further claimed that the applicant’s father’s (Ephraim Gbalah) unknown whereabouts have been unknown since 2009, as he did not stay in touch with his ex-partner (Roseline Gbalah), having left her with full custody of their children (Elvis and Joe) until she passed away.
The sponsor further claimed that Kou Lablah, Roseline’s older sister, has been the primary caregiver of the children since their mother’s passing, and that attempts to contact Ephraim through word of mouth and radio announcements were made by Ms Lablah.
It is stated that Mr Gbalah was located in Yekepa in 2008, where he had been living. The applicant’s aunt (Kou Lablah) then went to Yekepa to find him, but was told by the community he was no longer living there. Subsequently, it is claimed that Mr Gbalah was last seen at Lola market in Guinea Conakry in 2009. The sponsor claims that her aunt (Kou Lablah) has been attending this market hoping to locate the applicant’s father, having asked community members to contact her in case they see Mr Gbalah.
In this review, it was submitted in the written submissions of 6 November 2024 that the visa applicants’ father ‘has been missing for a long period’. The submissions stated:
It is acknowledged that the tracing of Ephraim Gbalah commenced in 2021 through the Red Cross,[3] as outlined in the tracing letter dated 4 September 2023 (Reference: AUS – 104529-01).[4] Ephraim Gbalah has been missing since 2009, and the elder sister, Kou Lablah, has assumed the responsibility of their case since that time, while also seeking to locate their father. Efforts to locate him were made through word-of-mouth and radio announcements, though such searches were not formally documented. Kou Lablah is willing to testify at the hearing, via video link, as she currently resides with the visa applicants and can provide firsthand testimony regarding her efforts to locate Ephraim Gbalah.
[3] See the letter from the Australian Red Cross dated 21 December 2021 which is on the Department’s file. This footnote does not appear in the submissions.
[4] The Tribunal notes that this document was before the delegate. This footnote does not appear in the submissions.
At the hearing, Ms Lablah gave oral evidence that the visa applicants’ father had left when their mother was pregnant with Elvis. Ms Lablah said that, at this time, she (Ms Lablah) had made efforts to locate him by attending a ‘neighbourly place’ but had not seen him. She said that when she returned, the visa applicants’ mother had been worried right up until giving birth to Elvis. The Tribunal also asked Ms Lablah to give oral evidence about her later attempts to locate the visa applicants’ father. She gave credible oral evidence about how she had followed up on leads by visiting various named places to look for him, but she said that she had never seen him. She said that, in the end, she concluded that it was better that she remain in place and care for the children herself. When the Tribunal asked Ms Lablah who it was who had given her the leads as to the possible location of the visa applicants’ father, she said that it was various people at marketplaces, and she mentioned one person named ‘Joe’.
The review applicant told the Tribunal that she had no knowledge where her step-father is and reiterated her earlier declaratory evidence that it was Ms Lablah who had attempted to locate him. Similarly to the evidence she gave in respect of having sent money to ‘Roseline Gbala’ and not her mother, the review applicant gave oral evidence that she had sent money to a man who was related to her step-father—saying that he was her step-father’s sister’s son—and not her step-father. Again, she said that she had needed to send money to someone who she could trust to pass it on to Ms Lablah.
Having had the opportunity to hear oral evidence from the review applicant, the visa applicants and Ms Lablah directly in a video hearing, the Tribunal found them each to be credible and accepts their oral evidence.
As has been explained, the delegate considered that the Australian Red Cross reports that related to the father’s unknown whereabouts were of a ‘non-genuine’ nature because the Department had accessed evidence which ‘indicated that a family relative in Australia transferred funds … to the applicant’s father (Ephraim Gbalah) after the claimed date of his disappearance’. While the review applicant had declared, in her statutory declaration made on 27 March 2024 (which is on the Department’s file), that she had ‘sent funds to Epeariam [sic] Gbala [sic] who is my stepfather sister son and was name[d] after my stepfather Ephraim Gbalah’ and that he had ‘collect[ed] it from the bank and give[n] it to my aunt Kou Lablah’, the delegate was critical that an identification card had not been provided for ‘Epeariam Gbala’ to support the claim that the funds had been transmitted to a different person to the visa applicants’ father.
The Tribunal notes, accepts and gives great weight to the reports from the Red Cross that are on the Department’s file and to the letter from the Australian Red Cross to the review applicant, dated 18 February 2025, which was filed in this review. The later letter states that the Australian Red Cross had been involved in tracing the review applicant’s step-father Ephraim Gbalah since December 2021. The letter continued:
26/11/2024: The ICRC Regional Delegation in Abidjan reported that, despite thorough field searches and coordination with relevant authorities, no information concerning the Sought Person could be found. They concluded that all available search efforts have been exhausted.
The Australian Red Cross advised you on 18/02/2025 that your Tracing Case has now been closed.
In this review, the representative submitted a birth certificate for ‘Ephraim N Gbalah’ (stamped BC1697856) and a copy of his current national identification card said to be issued by the Republic of Liberia (copies of both sides). Both documents list ‘Ephraim N Gbalah’ as having a date of birth on a particular date in 1986. The Tribunal notes, accepts and gives great weight to the birth certificate and current national identification card for ‘Ephraim N Gbalah’.
While no claims have been made as to the year of birth of the visa applicants’ father Ephraim Gbalah, as noted above, the death certificate for the visa applicants’ mother Roseline Gbalah states her date of birth as having been on a particular date in 1970 and the Tribunal considers it improbable that ‘Ephraim N Gbalah’—a male born 16 years after the visa applicants’ mother—is their father.
In view of the evidence before the Tribunal, the Tribunal accepts the claims that the visa applicants’ father Ephraim Gbalah has been of unknown whereabouts since 2009 and that, at a later date or dates, the money that the review applicant sent for use for the care of the visa applicants was sent to ‘Ephraim N Gbalah’, who is a different person to the visa applicants’ father, and that the money was sent to him because of the difficulty in sending it directly to the children’s guardian Kou Lablah.
Having considered and weighed all the evidence cumulatively, the Tribunal finds that both at the time of application for the visas on 2 February 2022 and at the time of this decision, each of the visa applicants could not be cared for by their father as he was of unknown whereabouts.
Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.
Best interests – reg 1.14(c)
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.
It was submitted, in the written submissions of 6 November 2024, that there are no compelling reasons to believe that the grant of a visa would not be in the best interests of the visa applicants.
Rather, the consistent claim has been that it would be in their best interests.
When the matters were before the delegate, the delegate had noted the claim that
Ms Kou Lablah is no longer able to support the applicant and his sibling like before, as she is ageing. As a result, Elvis and Joe heavily rely on their sister (Yoryor Gbala) to support them financially.
The sponsor also claims that, due to corruption in Liberia, supporting her siblings has been challenging, as the money sent to her siblings to pay for their education and daily needs is often denied (or only partly provided) to them by the bank. This makes it harder for the applicants to have access to food and education.
In the written submissions of 19 February 2025 it was submitted:
The Subclass 117 visa applicants must be brought to Australia immediately due to the severe security risks in Liberia. The country faces high crime rates, including violent assaults and robberies, and political instability with frequent protests. These factors create an unsafe environment for the applicants. Furthermore, Liberia’s infrastructure and services are unreliable, exacerbating daily challenges. In contrast, Australia offers a safer, more stable environment with educational and employment opportunities. Relocating the applicants would ensure their safety and provide them with a better future. Enclosed are the UK government’s Liberia Travel Advice and recent articles from Al Jazeera highlighting Liberia’s current condition.
In view of the evidence before the Tribunal, the Tribunal finds that, in each case, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.
Conclusion on cl 117.211 and cl 117.221
Given the findings above, cl 117.211 and cl 117.221 are met.
Consideration of PIC 4020 as required by cl 117.223
The other issue for determination in this review is whether, in each case, the visa applicant meets PIC 4020 as required by cl 117.223 for the grant of the visa.
Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA)
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘bogus document’ is defined in s 5(1) of the Act and the term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
It will be recalled that the delegate found the following documents to be bogus documents:
·the first certificate that was submitted to the Department to evidence the claimed death of the visa applicants’ mother Roseline Gbalah (the medical certificate); and
·the reports from the Australian Red Cross that were submitted to the Department which related to the claimed unknown whereabouts of the visa applicants’ father Ephraim Gbalah.
While the delegate did not specify which paragraph in s 5(1) of the definition of ‘bogus document’ was relevant, it appears that it is paragraph (c): a document that the Minister reasonably suspects is a document that was obtained because of a false or misleading statement, whether or not made knowingly.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
In the written submissions of 19 February 2025 it was submitted:
While an official death certificate for the mother was not provided, a hospital certificate confirming her death was submitted. This omission resulted from a lack of knowledge, and there was no element of ‘purposeful falsity’ involved. Upon realising this, the applicant took immediate steps to obtain the correct official death certificate through the appropriate channels.
The Tribunal accepts this submission.
The representative also provided the Tribunal with citations, case summaries and copies of three remittal decisions made by three different members of the AAT where the cases were said to be ‘similar to our clients’ situation’. The Tribunal thanks the representative for these reference materials.

In view of all the information and evidence before the Tribunal, the Tribunal finds that there is no evidence that, in relation to their respective visa applications, either visa applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’ or ‘information that is false or misleading in a material particular’.
Therefore, each visa applicant meets PIC 4020(1).
Has a visa previously been refused based on a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

100. As the Tribunal has found that, at the time of application for the visas, each visa applicant was under the age of 18 years, PIC 4020(2) does not apply.
Has the applicant satisfied the identity requirements?
101. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
102. There is no information or evidence before the Tribunal to suggest that either visa applicant is not whom they claim to be.
103. Therefore, each applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
104. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
105. There is no evidence before the Tribunal to suggest that, previously, either visa applicant was refused a visa based on a failure to satisfy PIC 4020(2A). Therefore, PIC 4020(2B) is met or does not apply.
Conclusion on PIC 4020 for the purposes of cl 117.223
106. Based on the above, the Tribunal finds that each visa applicant meets PIC 4020 for the purposes of cl 117.223.
CONCLUSION
107. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the grant of the visas.
DECISION
108. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, in accordance with the order that each visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
·cl 117.211 of Schedule 2 to the Regulations;
·cl 117.221 of Schedule 2 to the Regulations; and
·Public Interest Criterion 4020 for the purposes of cl 117.223 of Schedule 2 to the Regulations.

Date(s) of hearing: 19 February 2025
Representative for the Applicant: Mr Kristiana Ducaj (MARN: 1688519)

ATTACHMENT
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.

…
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.

(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;

neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.

…