Melka (Migration)

[2024] AATA 2471

Melka (Migration) [2024] AATA 2471 (14 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Bezuayehu Gebisa Melka

VISA APPLICANT:  Mr Robel Girma Gebisa

CASE NUMBER:  1926050

HOME AFFAIRS REFERENCE(S):          2016047060

MEMBER:Brendan Darcy

DATE:14 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 14 March 2024 at 3:45pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa –117 (Orphan Relative) visa – insufficient evidence to support claims that the whereabouts of the applicant’s mother are unknown – visa applicant was not an orphan relative of an Australian relative at the time of application – parties concede not to have lodged any official report with the authorities – Tribunal does not accept the applicant’s mother was either dead, permanently incapacitated or that her whereabouts were unknown – definition of ‘orphan relative’ was not met – there are compelling and compassionate aspects of the visa applicants’ circumstances – Ministerial intervention – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, r 1.14, Schedule 2, cls 117.111, 117.211,117.221

CASES
EC v MIMIA [2004] FCA 978

Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND 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 July 2019 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 applied for the visa on 11 July 2016. At that time, 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.

3. 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 clause 117.211 and regulation 1.14.

4. The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts, as required by r 1.14.

5. The review applicant or the sponsor appeared before the Tribunal on 25 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, Mr Million Gebisa Melka, who claimed to be the brother of the sponsor.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. The sponsor was born on 29 September 1973 in the Federal Democratic Republic of Ethiopia (Ethiopia). The applicant arrived in Australia on 16 June 2011 while holding a permanent partner visa. A copy of her Ethiopian passport issued in May 2009 is on the Departmental file. On the Tribunal’s file of copy of the sponsor’s Australian passport issued 5 July 2019, indicating Australian citizenship has subsequently been conferred upon her. 

9. The visa applicant or the applicant was born on 29 February 2000 in Ethiopia’s capital city, Addis Ababa, and is a citizen of Ethiopia. A copy of the applicant’s birth certificate issued by the authorities in Addis Ababa are on departmental file.

10. An application for a Class AH Subclass 117 (Orphan Relative) visa was lodged at Australia’s diplomatic mission in Nairobi in the Republic of Kenya on 11 July 2016. At the time of application, the sponsor was an Australian permanent resident.  In that application, the sponsor claimed to be the applicant’s aunt and that the applicant’s father, Mr Girma Gebisa Melka, and the applicant’s mother, Mrs Almaz Shamebo Kalbero, had their whereabouts reported as unknown.

11. Specifically, it was claimed that the applicant’s father had been residing in the Republic of South Africa (RSA) when he disappeared on 11 June 2015. As evidence of this disappearance, the applicant has provided an affidavit dated 12 June 2016 by Benyam Techane which gave details of the reported disappearance. A further affidavit dated 25 January 2019 by the same individual and an accompanying letter from the Ethiopian police was submitted. The letter by the Ethiopian authorities stated that no one of the applicant’s name has re-entered Ethiopian territory.

12. With regard to the whereabouts of the applicant’s mother, it is claimed she has been missing since the applicant was very young when she abandoned the applicant, leaving the father to raise the applicant with support from one of his grandmothers.

13. On 8 May 2018, the Department requested the applicant, through his migration agent, to provide additional information in support of the claims that his parents’ whereabouts are unknown. In particular, the applicant was asked to provide the following documents within 28 days:

    ·     Police report from the South African Police department with file reference number of the missing person’s report filed;

    ·     Statement on the circumstances of disappearance of his mother; and

    ·     Documentary evidence of efforts to trace his mother.

    On 3 July 2018, a document claimed to be from the South African Police service was provided dated 4 May 2018.

14. On 12 July 2019, a delegate acting on behalf of the Minister refused to grant the applicant a Class AH visa.

15. The department considered the letter provided against information contained on the South African Police website (SAPS) which provides details about how to report a missing person and how the process operates. It is noted a Detective is assigned to such cases and that the individual reporting the missing person should obtain the details of the investigation officer. In this case, however, the letter provided did not have details of the signatory and there was no indication whether a Detective had been assigned to the case. It can be further noted that there was no record of Germa Gibisa on the missing persons list on SAPS website.

16. On 11 January 2019 a natural justice letter was sent to the sponsor. The sponsor was given an opportunity to comment on the above information and to provide further substantive evidence of their having filed a missing persons’ report and acquired a police report in response.

17. On 1 Feburary2019, the department received a response from the migration agent on behalf of the sponsor. The email response contained the following text:

    “……..As per your kindly request, the above client has provided a new Evidence of the missing person report from South Africa Police Service.
    The sworn affidavit, in addition to full details of the detective assigned to the case, records internal procedures of referral and further investigation undertaken within the organization…….”

18. An affidavit by Benyam Techane was also provided. The affidavit reiterates that a missing person report was made on 12 June 2015, adding that it was transferred from one station to another and has not yet been completed.

19. According to the delegate’s decision, the delegate placed limited weight on these documents and assessed that there is insufficient evidence to support claims that the applicant’s father’s whereabouts are unknown.

20. In regard to the mother of the applicant, the delegate noted the lack of substantive documentation to support claims efforts to locate his missing mother had been undertaken. The delegate accordingly assessed there is insufficient evidence to support claims that the whereabouts of the applicant’s mother are unknown.

21. On 17 September 2019, the review applicant applied to have the refusal decision not to grant the applicant a visa to be reviewed by the Tribunal. A copy of the notification letter and the decision record was attached to the valid application for review.

22. On 25 October 2023, the sponsor and the witness attended the hearing as mentioned above. The visa applicant did not provide any evidence during the hearing.

23. On 11 November 2023, the Tribunal received the following as part of the post hearing submission:

    ·     Statutory declaration by the sponsor in response dated 11 November 2023.

    ·     Proof of recent travel by review applicant and her Australian citizen brother (the witness) in an attempt to locate their missing brother in South Africa.

    ·     A translation of a written statement dated 20 September 2019. The letter is signed by Getachew Ayelle Chank, a Chief Executive of ‘Woreda 06 Administration Office’. It states the applicant was born out of wedlock and that the applicant’s father left for RSA for work and that his whereabouts are not known since June 2015;

    ·     Copies of the sponsor’s and the witness’ Australian passports.

    ·     A South African Police letter dated 4 May 2018 indicating the applicant’s father was reported as a missing person on 12 June 2015.

    ·     An affidavit by Benyam Techarn dated 25 January 2019 to attest that he made a report on12 June 2015 that he reported the applicant’s father as a missing person to the police in RSA.  South African Police 

    Is the visa applicant an orphan relative of an Australian relative?

24. 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.

25. ‘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. 

26. In the present case, the applicant’s aunt (the sponsor) was an Australian permanent resident and therefore is the relevant Australian relative at the time of application.

27. For the reasons below, the visa applicant was not an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is not met, and continues not to be met at the time of decision.

    Age – reg 1.14(a)(i)

28. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18.

29. At the time of application, the applicant provided his birth certificate and other identity documents indicating his date of birth was 29 February 2000. It indicates that the applicant was aged 16 years and four months at the time of application.

30. Accordingly, reg 1.14(a)(i) was met at the time of application.

31. At the time of decision, the applicant was aged 24 years of age.

32. Accordingly, reg.1.14(a)(i) continues to be met at the time of decision, but only because the applicant has turned 18.

    Spouse or de facto partner – reg 1.14(a)(ii)

33. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner.

34. According to the submitted forms accompanying this application for a Class AH visa, the applicant had never been married. Neither had he been engaged to be married or been in a de facto relationship at the time of application. The parties claim this is the case at the time of decision in their oral and written evidence.

35. With no evidence to the contrary, reg 1.14(a)(ii) was accordingly met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

36. 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.

37. With no evidence to the contrary, the Tribunal accepts the sponsor was an Australian permanent resident who has been usually resident in Australia at the time of application.

38. The sponsor claims to be the aunt of the applicant, and the applicant is the nephew  of sponsor at the time of application.  The Tribunal accepts this.

39. For the applicant to satisfy this regulation 1.03(b) which defines a relative of the sponsor, the applicant must be a close relative or a relative. A close relative includes the spouse or de facto partner of a person; a child, parent, brother or sister of person; or a step-child, step-brother or step-sister of the person. A relative includes a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

40. Accordingly, 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)

41. 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.

42. During the hearing and reiterated in the sponsor’s statutory declaration from November 2023, the sponsor explained that her brother (the applicant’s father) had a short-lived romantic relationship with the applicant’s mother. From this relationship, the applicant was unexpectedly conceived and then born out of wedlock in February 2000. The applicant’s parents were young and not well resourced.

43. At the hearing, the sponsor elaborated the mother of the applicant abandoned the applicant and his father when they applicant was aged less than two years. She further explained that the mother was living with her husband and his extended family in Addis Ababa, and she had no work and that the pregnancy was a source of shame or stigma for her. The sponsor added the mother returned to the southern part of Ethiopia where there are many different ethnic groups with different dialects and cultures which differed from her family’s Oromo ethnic. These ethnic and linguistic barriers, it was argued left the family incapable of discovering her whereabouts.

44. The sponsor acknowledged that the were no missing persons reports or death certificates pertaining the applicant’s mother. Asked whether the sponsor or someone else approached Red Cross to help locate the mother, the sponsor told the Tribunal she did not as it did not occur to them.  There was no suggestion that the applicant’s mother was suffering a permanent incapacitation from a physical disability or severe mental health conditions – only that she endured the stigma of having a child born out of wedlock – which the Tribunal accepts as credible.

45. The Tribunal raised with the sponsor that there is a distinction between a missing parent with a parent who abandons their child when considering the definition of an orphan under the relevant regulation. The sponsor responded both orally and in writing that the barriers to locating the applicant are social, linguistic and ethnic and they did not know the mother’s family.

46. The applicant’s representative added there were significant administrative or bureaucratic barriers to discovering her whereabouts. However, Ethiopian authorities have a relative sophisticated system to register births, marriages, divorces, adoptions and deaths thought civil registration services. Lodging police reports is negatively affected by regional police forces being dominated by the ethic group tat is the majority in that state which the force is responsive but otherwise the regional and federal government authorised offer a degree of coordination whereby a missing persons report could be lodged. The Tribunal does not accept the representative’s characterisation of the Ethiopian authorities as it is relevant to this matter, which includes the parties concede not to have lodged any official report with the authorities.

47. There is insufficient evidence for the Tribunal to accept that the mother’s abandonment of the applicant was due to a long-standing and ongoing lack of power, capacity, ability or possibility to care for her child amounts to permanent incapacitation, either at the time of application or the time of decision. Had she refused to care or abandoned care or was unwilling to care for the applicant as a parent because of the keenly felt stigmatisation towards Ethiopian women with children born out of wedlock or any related reasons claimed does not amount to permanent incapacitation.

48. There is insufficient evidence in this matter to reasonably accept, that, at the time of application the mother of the applicant was either permanently incapacitated or that her whereabouts were unknown. The applicant’s family had not taken any meaningful activities to discover her whereabouts, either through official means, or a non-government organisation or informally. It does not accept the claimed societal barriers within their shared country of nationality restricted their capacity to locate the elusive parent under the circumstances. While there are many conflicts in Ethiopia, the country information from the most recent DFAT report on Ethiopia (August 2020) states that the right to freedom movement is largely respected in practice, and Ethiopians can do relocate internally. That the mother’s whereabouts to the applicant and her family were unknown to them, did not follow her whereabouts was unknowable or beyond discovering through reasonable efforts or unknown to others at the time of application or at anytime since.

49. In this regard, the Tribunal does not accept the applicant’s mother was either dead, permanently incapacitated or that her whereabouts were unknown for the purposes of r 1.14(b).

50. With regard to the whereabouts of the applicant’s father, it is claimed that the father departed Ethiopia for the RSA in 2004. The sponsor explained he travelled to RSA for work and to avoid civil strife. At the time of his departure, the applicant was aged about four years. In RSA, the father operated a business as a vendor and that he was provided with a temporary refugee card with his identity attached. However, in in 2014, the sponsor’s brother stopped contacting family members. Family members also contacted his friends but they too failed to find him.

51. One of those friends, Binyam Techane, approached the authorities in RSA to lodge a missing person report in June 2015. There is credible documentary evidence to support this. The applicant and the witness also provided oral and written evidence travelled to RSA supported by the entry and departure stamps in their passports that they both travelled to RSA in October 2022, in an unsuccessful effort to locate the applicant’s father. During this visit, they made their own enquiries with police and members of the Ethiopian communities in various cities.

52. The Tribunal also received oral evidence that there is no death certificate in relation to the applicant’s father and that he did not have any disability at the time. The Tribunal enquired whether the sponsor’s brother had stopped contacting the family in or after 2014 because the applicant’s father had abandoned his child and did not want to be contacted because, for instance, he had begun a new family. The response was that they could not discount the possibility. Nonetheless they have genuinely tried to locate him. It was noted there are credible reports that asylum seekers and irregular migrants in RSA have been subject to significant physical maltreatment and killings, including by anti-migrant vigilante groups.

1. On balance, the Tribunal makes a finding of fact that the applicant’s father is of unknown whereabouts. Up until 2014 he had otherwise been in contact with the family, including the applicant, and sending remittances, indicating it would be out of character for him to abandon the applicant. The Tribunal accepts the family has made meaningful efforts to discover his whereabouts and the oral, written and documentary evidence is consistently and reliably put.

2. Given the findings above, there is insufficient evidence for the Tribunal to accept both of the applicant’s parents were dead, permanently incapacitated or of unknown whereabouts to any of the parties involved in this application at the time of its lodgement, or at any other point in time.

3. Accordingly, the Tribunal does not accept that the applicant cannot be cared for because each of their parents are either dead, permanently incapacitated or of unknown whereabouts.

4. Accordingly, reg 1.14(b) was not met at the time of application and does not continue to be met at the time of decision.

5. It follows, the applicant satisfies r.1.14(b) even were they to satisfy the preceding regulations 1.14(a)(i) and 1.14(a)(iii) or the proceeding regulation of 1.14(c).

   Best interests – reg 1.14(c)

6. 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.

7. On balance and when comparing the security situation in Ethiopia with the available opportunities for education and work in a relatively safe environment in Australia, the Tribunal accepts there is a compelling reason to believe the grant of the visa would be in the better interest of the applicant. This was the case at the time of application and at the time of making this decision.

8. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

   Has the applicant been adopted by the Australian relative?

9. Clause 117.211(b) is met if, at the time of application, the visa applicant was not an orphan relative only because he or she had been adopted by the Australian relative. The relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet this criterion: EC v MIMIA [2004] FCA 978.

10. There is no evidence that the sponsor is the legal adoptor or even guardian of the visa applicant according to an authority of or jurisdiction within Ethiopia.

11. As the visa applicant was not an orphan relative, the applicant was not an orphan relative, either at the time of application or time of decision.

12. Accordingly, cl 117.211(b) is not met, and does not continue to be met at the time of decision.

    Conclusion on time of application and time of decision criteria

13. Given the findings above, cl 117.211 is not met.

14. The Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, and this is not only because the visa applicant has turned 18. It follows that cl 117.221 is not met.

15. For these reasons, the criteria for the grant of a Subclass 117 visa are not met.

    Other subclasses of Class AH visas

16. The Tribunal has considered whether the visa applicant is entitled to the grant of a Subclass 102 Adoption visa.

17. It is noted there was an absence of any adoption order.

18. Clause 102.211(3) requires a competent authority in Australia has approved the prospective adoptive parent, and there is no evidence of such approval by competent authority in Australia. Clause 102.211(4) requires that arrangements for the adoption are in accordance with the Adoption Convention for are in accordance with the Family Or (Bilateral Arrangements – Intercountry Adoption) Regulations 1998. There is no evidence that the arrangements are in accordance with either these Convention or Regulations. Clause 102.211(5) requires that the visa applicant was adopted in accordance with the Adoption Convention in an Adoption Convention country, and there is no evidence that the visa applicant was adopted in accordance with the Adoption Convention. For these reasons the Tribunal is satisfied that there is no evidence that the visa applicant meets the requirements of clauses 102.211(3), (4) or (5).

19. Clause 102.211(2)(b)(ii) requires that the visa applicant was adopted overseas by a person who had been residing overseas for more than 12 months at the time of application. However, the sponsor had not visit Ethiopia for a period of time for more than a 12-month or longer period at the time of application, although she had visited Ethiopia on a few occasions. 

20. The Tribunal is not satisfied there is legal authority in Ethiopia that has endorsed an adoption order in relation to the sponsor and the visa applicant. There is also insufficient evidence of a customary adoption taking place for the purposes of regulation 1.04 which defines the adoptor/adoptee relationship. In particular the Tribunal does not accept the formal adoption of the kind referred to in paragraph (1)(b) of the same regulation was not available to the parties under the law of Ethiopia. For this reason, the Tribunal is not satisfied that the visa applicant meets the requirements of clause 102.211(2)(b)(ii).

21. For the reasons stated above, the tribunal is not satisfied that the visa applicant meets the requirements of cl.102.211(2), (3), (4), or (5), and therefore does not meet the requirements of cl.102.211.

22. The Tribunal has considered whether the visa applicant is entitled to the grant of a Subclass 101 Child visa.

23. The applicant is not a biological child of the sponsor. The Tribunal acknowledges that the definition of a child is broader than a biological relationship. As noted above, the Tribunal accepts that the sponsor had taken care of the child and provided for him financially and emotionally and otherwise for many years.

24. The sponsor has contributed to the care of the applicant along with other family members since the applicant’s father went missing in 2014. Most contact they have had over time is by long distance video phone calls. It does not discount there is a real emotional bond between them. However, the Tribunal is not satisfied on the evidence before it that the sponsor had the parental responsibilities for the children within the meaning of s 61B of the Family Law Act.

    Accordingly, the Tribunal is not satisfied the visa applicant is a child of the sponsor. The visa applicant does not meet the requirements for the grant of the Subclass 101 Child visa.

25. The Tribunal has also decided that the visa applicant does not meet the requirements for the grant of the other visas in Class AH.

    Ministerial intervention

26. The Tribunal has considered the written and oral evidence before it and accepts that the review applicant (or the sponsor) has been materially and financially supporting the visa applicant over a sustained and ongoing basis. The sponsor takes her responsibility very seriously and conscientiously. The sponsor and her other relatives in Australia have successfully migrated to Australia.

27. In this matter, the Tribunal has determined that only one of the applicant’s parents - and not both, are either dead, permanently incapacitated or of unknown whereabouts, at the time of application. As such, the definition of ‘orphan relative’ was not met.

28. Neither has the requirement for a formal adoption in this matter been met. It has found that the specific requirements that the customary adoption does not meet the requirements of regulation 1.04.

29. There is no compelling or compassionate waiver attached to either regulation 1.14 or 1.04.

30. However, it accepts the visa applicant’s mother abandoned the applicant at a very young age, and was cared for by his father, at least in part, until his disappearance in 2014. Saliently, the visa applicant has not had both parents since this time and that the sponsor and the extended family has taken responsibility to care for the applicant. Naturally the sponsor worries deeply for the applicant given the role she has taken up in lieu of the applicant’s absent and/or missing parents.

31. The visa applicant resides in Ethiopia where he is a citizen of that country. By ethnicity he is of Oromo background.

32. Ethiopia has significant security issues. The 2022 human rights report on Ethiopia prepared by the United States’ Department of State states there are credible reports of widespread human rights abuses. The government has taken limited steps to prosecute officials who committed human rights abuses or were involved in corruption, resulting in impunity for most abuses. There were reports of killings of civilians, rape, and other forms of gender-based violence, forced displacement, and looting and destruction of property by the Tigray People’s Liberation Front, Amhara regional militias, and other armed groups. These reports were widespread in the context of the conflict in the northern part of the country. Unidentified militants reportedly carried out attacks and killings of civilians in various parts of Benishangul-Gumuz and western Oromia throughout the year. Local militia groups in Afar, Oromia, and Somali Regions reportedly carried out attacks and killings of civilians, displacing thousands as part of long-running regional boundary disputes. The Oromo Liberation Army (also known as “Shene”) – an armed separatist group with factions in western, central, and southern Oromia – reportedly killed civilians and government officials in many parts of Oromia, especially in the west. Over and above abuses caused by armed conflict, civil liberties relating to political parties and participation, independent journalism, internet freedom, freedoms of assembly are significant curbed under national security and anti-libel/slander laws and official political interference.

33. The visa applicant has an Australian family here in Australia who are willing to educate and nurture him. He will have access to health and other basis services in Australia and an opportunity to live in a country offering opportunities for education and work where the society, unlike Ethiopia, is not prone to civil strife and widespread human rights abuses.

34. When weighing up he information before it, the Tribunal finds there are compelling and compassionate aspects of the visa applicants’ circumstances and its negative impact on the sponsor and his relatives in Australia for the Minister to consider.

35. The Tribunal therefore recommends that this matter be brought to the Minister’s attention for consideration of the exercise of his discretion under s.351 of the Act. The Tribunal recommends consideration of the strong compassionate circumstances of this case, that if not recognised, could result in serious ongoing and irreversible harm to the sponsor as an Australian citizen and her Australian family, who have provided ongoing emotional and financial to the visa applicant.

    Conclusion

36. For these reasons, the criteria for the grant of a Subclass 117 visa are not met.

37. There have been no claims advanced in respect of the other visa subclasses in Class AH.

    DECISION

38. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Brendan Darcy
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    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.