Issa (Migration) - [2025] ARTA 2242

Issa (Migration) [2025] ARTA 2242 (29 July 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Halima Mohammud Issa
Visa Applicant:  Miss Samiro Mohamed Mohamoud
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2517677

Tribunal:Kira Raif
Place:Sydney
Date: 29 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order 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 29 July 2025 at 2:26pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of parents – DNA testing – documentary evidence of deaths not available – best interests of the child – ability to provide accommodation and financial support – 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
Mahamud v MIAC [2025] FedCFamC2G 789
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 12 March 2025 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 August 2010. She applied for the visa on 16 August 2018. The delegate refused to grant the visa as the visa applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant was an orphan relative of the Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 29 July 2025 to give evidence and present arguments. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be set aside and the matter 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) (the Regulations).
Clause 117.211 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…

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.

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Details

AGLC: Issa (Migration) [2025] ARTA 2242
Case: [2025] ARTA 2242
Decision Date: 29 July 2025

CaseChat Overview and Summary

The case before the court involved a review of a decision regarding the eligibility of a child for a subclass 117 (Orphan Relative) visa. The applicant, who was accompanied by her two siblings, sought the visa based on her relationship to her deceased parents and her sponsorship by her paternal aunt. The primary issue for the court was whether the applicant qualified as an orphan relative of an Australian relative, particularly in light of the DNA testing results that cast doubt on the claimed sibling relationship. The court also had to consider whether the applicant's circumstances met the criteria set out in the Regulations, including age and the status of her parents.

The court addressed the definition of 'orphan relative' and 'Australian relative', and considered whether the applicant's parents were deceased, as required by the Regulations. The court examined the documentary evidence provided by the applicant regarding the deaths of her parents, noting the absence of formal documentation, and weighed this against the DNA testing results. The court also considered the best interests of the child, including the ability of the applicant’s sponsor to provide accommodation and financial support. Ultimately, the court concluded that despite the inconclusive DNA results and lack of formal documentation of the parents’ deaths, the applicant met the criteria for an orphan relative due to her age and the circumstances surrounding the deaths of her parents.

The court found that the applicant was indeed an orphan relative of an Australian relative, as she was under 18 years old at the time of the application and the evidence supported the claim that her parents were deceased. The court was satisfied that the applicant’s age and the circumstances surrounding the deaths of her parents met the regulatory criteria. Therefore, the court remitted the decision to the delegate for reconsideration, taking into account the applicant’s status as an orphan relative and the ability of the sponsor to provide support. This decision underscored the importance of the applicant’s age and the broader context of the evidence provided, despite the DNA testing results.

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.Primary decision The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant made the application for the Orphan Relative visa in October 2018 with her two siblings Bisharo and Najma. The visa applicant stated that her mother Fadumo Ali Osman and her father Mohamed Mohamoud Issa were both deceased. The applicant was sponsored by her paternal aunt. The application was accompanied by a declaration from the sponsor who stated that the child’s father is her brother. In 2011 she found out that her brother was very unwell and she later heard that he had died. After his death, she did not hear from the children’s mother and she found out that the children’s mother died a short time later as she was caught in the cross-fire of the neighbours’ dispute. During the processing of the application the delegate requested the applicant and her siblings to undertake DNA testing to confirm their relationship with the sponsor. The testing showed that the visa applicant was related to the sponsor as biological niece and aunt, however, the DNA testing showed that it was unlikely that the visa applicant was related as a biological sibling to Bisharo or Najma. The testing showed that the full siblingship and a half siblingship relationship between Samiro and her two sisters was either unlikely, highly unlikely or extremely unlikely. Bisharo’s and Najma’s relationship to the sponsor was inconclusive. The delegate noted that the applicant claimed to have the same parents as Bisharo and Najma and claimed to be full siblings with them and that claim was not supported by the DNA results. The delegate noted that this raised questions as to who the biological parents of the visa applicant were and as to their whereabouts. As a result, the delegate was not satisfied the visa applicant could not be cared for by either parent. Is the visa applicant an orphan relative of an Australian relative? For the reasons below, the Tribunal is satisfied that the visa applicant was an orphan relative of an Australian relative at the time of application and is an orphan relative of an Australian relative at the time of this decision. Age – reg 1.14(a)(i) Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicant was born in August 2010 and the application for the visa was made in October 2018. The Tribunal is satisfied the visa applicant was under the age of 18 at the time of application. Accordingly reg 1.14(a)(i) was met at the time of application and continues to be met at the time of decision.Spouse or de facto partner – reg 1.14(a)(ii)

Ratio Decidendi

Legal Principle Established

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