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

1. 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).

2. 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.

3. 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

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

5. 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 18: cl 117.221.

6. ‘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

7. 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.

8. 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.

9. 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.

10. 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?

11. 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)

12. 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)

13. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is nothing to suggest the visa applicant has a spouse or de facto partner. 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 primary decision record indicates that DNA testing was completed to evidence the relationship between the visa applicant and the sponsor, which confirmed their relationship as niece and aunt. On the basis of that evidence, the Tribunal finds that the sponsor is the aunt of the visa applicant and that the visa applicant is a relative of the sponsor. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

16. The delegate noted that it was not possible to determine who the visa applicant’s parents were because her relationship with her siblings could not be established through DNA testing. The visa applicant claims in her submission of 28 July 2025 that she always believed her siblings to be her siblings and relied on that belief when making the visa application.

17. Whatever the visa applicant’s relationship with her siblings, the Tribunal notes that the visa applicant’s relationship with the sponsor has been established through DNA testing and it is not necessary for the Tribunal to determine the relationship of the other siblings as they are not part of this review. The fact that the visa applicant’s relationship with the sponsor has been confirmed through DNA testing supports the visa applicant’s claims concerning the identity of her parents.

    No parental care – reg 1.14(b)

18. 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.

19. In her submission to the Tribunal of 28 July 2025 the review applicant states that sufficient evidence was provided concerning the deaths of the visa applicant’s parents. The review applicant refers to the two statements concerning the death of the parents and states that it was unreasonable for the delegate to require formal death records (the applicant relies on the reasoning in Mahamud v MIAC [2025] FedCFamC2G 789).

20. The review applicant told the Tribunal in oral evidence that the visa applicant has been living with her relative since 2014 and that has been the arrangement since the visa applicant’s mother passed away. The review applicant states that she has been supporting the visa applicant financially and sends money to her regularly through the Hawala system.  The review applicant states that the other two sisters learned about the DNA results and became depressed and left the family home and they could not be located since. The review applicant could not comment on why the DNA test did not confirm the relationship between the three sisters.

21. The review applicant told the Tribunal, with respect to the death of the visa applicant’s mother, that she was caught in the cross-fire of the two warring factions. The review applicant states that there was a witness who witnessed the mother’s death but because it happened in the countryside, no formal documents were issued. With respect to the death of the father, the review applicant states that he became sick during the famine and died in 2011. The review applicant states that because it was in the countryside, there were no doctors or hospitals and no help available, he did not see a doctor and there are no formal records of his death.

22. The Tribunal generally found the review applicant to be a credible witness. The Tribunal accepts that it may not always be possible to obtain documentary evidence of deaths in circumstances where there are no accurate record keeping practices in the country, where there is an ongoing conflict and, particularly in rural countryside where the deaths occurred and where there were very limited services at best. In the circumstances, the Tribunal accepts that the absence of formal records of deaths does not detract from the possibility that the visa applicant’s parents are deceased as claimed. In this case, the visa applicant provided statements from third parties concerning the deaths of the parents and there is no obvious reason to disregard such evidence.

23. The Tribunal also accepts that the visa applicant has been in the care of people other than her parents. That supports the claims that the parents are either deceased or that their whereabouts are unknown, at least to the visa applicant.

24. The Tribunal also notes that if the visa applicant’s parents were persons other than those identified in the application form (noting the delegate’s concerns that it is not possible to determine who the parents are), the same reasoning applies in relation to any other person who may be the parent of the visa applicant. That is, there is no evidence that the visa applicant is in fact cared for by any such person and it may reasonably be said that if the visa applicant has parents other than those identified in the application, their whereabouts are unknown. The Tribunal notes that in Mahamud the Court found that the Tribunal misapplied r. 1.14(b) by requiring the visa applicant to show they had made a genuine attempt to locate a parent, rather than considering whether the parent’s whereabout was unknown to the visa applicant who was a minor at the time of the parent’s disappearance.  The circumstances discussed in Mahamud are not dissimilar that exist in the present case.

25. On the basis of the presented evidence, the Tribunal is satisfied that the visa applicant cannot be cared for by her parents because they are either dead or of unknown whereabouts. The Tribunal is satisfied that the requirements of r. 1.14(b) were met at the time of application and continue to be met at the time of decision.

    Best interests – reg 1.14(c)

26. 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.

27. The review applicant told the Tribunal that the visa applicant would live with her. She states that she lives in a three bedroom house and is working and can support the visa applicant financially. Her children are also working. The review applicant states that both she and her children are regularly required to obtain police checks for work and have no criminal convictions. The review applicant states that she has the ability to provide accommodation and financial support to the visa applicant.

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

29. The Tribunal finds that the visa applicant meets the requirement of r. 1.14. Given the findings above, cl. 117.211 is met. The Tribunal finds that the visa applicant continues to satisfy the criterion in cl. 117.211 at the time of decision and meets cl. 117.221.

    Conclusion

30. Given these findings, the appropriate course is to set aside the decision under review and remit the  application to the Minister to consider the remaining criteria for the visa.

    DECISION

31. 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.

    Date(s) of hearing  29 July 2025

    Representative for the Applicant:Mr Erskine Rodan