Ibrahim (Migration) - [2025] ARTA 2134

IBRAHIM (MIGRATION) [2025] ARTA 2134 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Mohamed Aden Ibrahim
Visa Applicant:  Master Hassan Mohamed Abdulahi
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2422168

Tribunal:Senior Member K. 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 7:57am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – inconclusive DNA testing – strong evidence of a second degree relationship – permanent incapacity of the father – best interests of the visa applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), 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 REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 May 2024 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant is a national of Somalia, born in February 2008. He applied for the visa on 11 July 2022. The delegate refused to grant the visa because the applicant did not meet cl 117.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was an orphan relative of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 28 August 2024 and 16 December 2024 to give evidence and present arguments. The Tribunal conducted a combined hearing in relation to the three visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal has prepared three statements of reasons with respect to the three visa applicants. As their cases raise the same issue and the visa applicants rely on the same evidence, the Tribunal’s statements of reasons in these cases are substantially identical.
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) (the Regulations). Relevantly to this case, they include cl 117.211

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 Ibrahim (Migration)

Details

AGLC: Ibrahim (Migration) [2025] ARTA 2134
Case: [2025] ARTA 2134
Decision Date: 1 July 2025

CaseChat Overview and Summary

The applicant in this matter sought review of a decision to refuse to grant him a Child (Migrant) (Class AH) visa, subclass 117 (Orphan Relative). The dispute hinged on the definition of 'orphan relative' and the relationship between the applicant and the sponsor, who was alleged to be his maternal uncle. The matter was heard by the Administrative Appeals Tribunal, which conducted a detailed examination of the evidence presented, including DNA testing results and identity documents. The primary issue before the Tribunal was whether the applicant met the definition of an orphan relative under the Migration Regulations, particularly in light of the inconclusive DNA testing results and the permanent incapacity of the applicant’s father.

The Tribunal had to determine whether the relationship between the applicant and the sponsor was conclusively proven to be that of a maternal uncle and nephew. The DNA testing provided inconclusive evidence of their relationship, despite strong indications of a second-degree relationship through other family members. The Tribunal also needed to consider the best interests of the applicant, particularly given his father's permanent incapacity. The Tribunal noted that the birth certificates, while recently issued, provided some supporting evidence of the claimed relationship.

After examining all the evidence, the Tribunal found that the primary decision-maker had failed to adequately address the evidence of relationship and the best interests of the applicant. The Tribunal concluded that the decision was unreasonable and remitted the matter back to the delegate for reconsideration, directing that all relevant evidence be taken into account, including the best interests of the applicant and the strong evidence of a second-degree relationship through other family members.

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

‘Orphan relative’ is defined in reg 1.14 of the Regulations. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): reg 1.03. In the present case, the sponsor is claimed to be the visa applicant’s maternal uncle.Primary decision record The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the visa applicant claimed to be a nephew of the sponsor. It is noted that in the application the visa applicant claimed that his mother is Rahmo Adan Ibrahim and his father is Mohamed Abulahi Mohamed. The visa applicant claimed that his mother was deceased and his father permanently incapacitated. The primary decision record indicates that the visa applicant provided with the application a number of personal identity documents, as well as his parents’ identity documents and the sponsor’s birth certificate. It is noted that the applicant and sponsor were required to undertake DNA testing to establish their relationship. The Department received results in March 2024 and these show that there is inconclusive evidence of relationship between the visa applicant and the sponsor. The delegate noted that the applicant claimed to be a maternal nephew of the sponsor. The applicant’s birth certificate identifies his mother as Rahmo Adan Ibrahim and the mother’s birth certificate identifies her parents as Hawa Sheikh Mohamad and Aden Ibrahim. The sponsor’s birth certificate lists his mother as Hawa Sheikh Mohamad but does not list a father. The delegate noted, however, that the birth certificates have been recently issued and as such, gave these little weight. The delegate notes that the DNA testing showed that i.The visa applicant was practically proven to be related to his brother Hasan Mohamad Abdulahi as full siblings.ii.The visa applicant was practically proven to be related to his sister Halima Abdulahi as both full sibling and half-sibling btu the likelihood ratio was more likely for a half sibling relationship. iii.There was inconclusive evidence of relationship between the visa applicant and the sponsor.iv.The sponsor’s relationship with the applicant’s brother Hassan Abdulahi was inconclusive.v.The relationship between the sponsor and the applicant’s claimed sister Halima Abdullahi was ‘very likely’. vi.The first degree relationship between the visa applicant and Ahmed Mohamed Abdulahi was practically proven.vii.The likelihood ratio of a first degree relationship between Hassan and Halima was 19.5 (very likely) while the likelihood ratio of a second degree relationship is over 90 (very likely). viii.The first degree relationship and the second degree relationship between Ahmed and Halima are both practically proven but the likelihood of second degree relationship was much higher.

Ratio Decidendi

Legal Principle Established

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