Negash (Migration)

[2023] AATA 2552

Negash (Migration) [2023] AATA 2552 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Paul Joseph Smith (MARN: 9576905)

CASE NUMBER:  1837247

MEMBER:Justine Clarke

DATE:5 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal 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 05 July 2023 at 2:49pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – DNA test results – school records – financial support – best interests of the child – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 19 November 2018 by a delegate of the Minister for Home Affairs 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. On 31 May 2016, the visa applicant, [name], applied for the visa. 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. [Name], the review applicant and sponsor, gave credible oral evidence to the Tribunal that she is an Australian permanent resident, and the Tribunal accepts that, both at the time the visa applicant applied for the visa and at the time of this decision, she was and is an Australian permanent resident.

4. 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 and cl 117.221.

5. Clause 117.211(a) provides that, at the time of application, the visa applicant is an orphan relative of an Australian relative of the visa applicant.

6. Clause 117.221 provides that, at the time of decision, the visa applicant must continue to satisfy cl 117.211 or not do so only because she or he has turned 18.

7. ‘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.

8. 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)).

9. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa because the delegate was not satisfied that, at the time of application, the applicant was an orphan relative (as defined). Specifically, the delegate stated that he was not satisfied that the visa applicant cannot be cared for by either parent because each of them is dead, permanently incapacitated or of unknown whereabouts (reg 1.14(b)). Accordingly, the delegate did not need to make findings about the other requirements in reg 1.14. The delegate found that the visa applicant did not meet cl 117.211.

10. On 19 December 2018, the review applicant applied to the Tribunal for review of the primary decision. The review applicant was represented in relation to the review.

11. On 24 May 2023, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from [Sister A] (the review applicant’s sister) and [Friend A] (a family friend). The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The representative and a number of support people for the review applicant also attended the hearing. The Tribunal notes that this hearing was combined with the hearing in AAT reference number 1837246.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether, at the time the visa application was made on 31 May 2016, the visa applicant was an orphan relative of an Australian relative (cl 117.211(a)).

14. In the circumstances of this case, including the fact that the application was made seven years ago, the Tribunal considers that it is appropriate to make findings about cl 117.221 (a time of decision criterion) as well.

15. In assessing the issues for the determination, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as the oral evidence given at the hearing. The Tribunal acknowledges that it has more evidence before it than had been before the delegate.

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

16. For the reasons below, the Tribunal finds that:

    ·at the time of application, the visa applicant was an orphan relative of the Australian relative and thus met cl 117.211(a); and

    ·at the time of this decision, the visa applicant does not continue to satisfy the criterion in cl 117.211 only because he has turned 18. Thus, he meets cl 117.221(b).

    Age – reg 1.14(a)(i)

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

18. In his application for the visa, the visa applicant claimed that his date of birth was a specific date in the second quarter of [specified year] (Gregorian calendar). The review applicant also gave this date as the visa applicant’s date of birth in her sponsorship form (Form 40CH).

19. At the hearing, when asked for the visa applicant’s date of birth, the review applicant gave a specific date in the Ethiopian calendar for the [specified year]. The Tribunal has used an online Ethiopian calendar converter and is satisfied that the review applicant’s oral evidence accords with the date that the visa applicant claims is his date of birth.

20. The Tribunal notes that the review applicant and the visa applicant have provided some documentary evidence to corroborate their claims about the visa applicant’s date of birth. For example, the visa applicant’s Ethiopian birth certificate and the bio-pages of his Ethiopian passport are on the Department’s file.

21. Notwithstanding this documentary evidence, the delegate did not make findings about the age requirement. Rather, the delegate refused the visa based on reg 1.14(b) not being met.

22. Although the delegate did not refer to it in the primary decision, the Tribunal is aware that the Department took steps to check the visa applicant’s school records.

23. The Tribunal has reviewed the following documents on the Department’s file:

    ·document titled ‘School Records – Question Form’ (folio 63); and

    ·an internal email, dated 24 October 2018, reporting on information obtained from the International Organisation for Migration (IOM) in Addis Ababa (folios 64–65).

24. The header of the document at folio 63 refers to ‘Visa Integrity Unit Australian High Commission – Nairobi’. The document has a series of typed questions and handwritten answers. The Tribunal accepts the veracity of the representative’s written submission of 17 May 2023 that ‘[t]he actual hand written report makes no reference to IOM, only to the Visa Integrity Unit Nairobi’.

25. By contrast, the internal email at folios 64–65 states that the person who had attended the issuing office in respect of the school records [in] October 2018 was ‘a representative of IOM Addis Ababa’.

26. In the written submissions of 17 May 2023, the representative was critical as to who had undertaken the checks. It was submitted, ‘[f]ile records received under Section 362A are confusing. In some sections the report was undertaken by the IOM and in others by the Department’. The Tribunal accepts the veracity of the representative’s submission that these records are confusing.

27. The Tribunal notes that the email of 24 October 2018 relevantly states:

    School records – [the visa applicant]

    On [a day in] October 2018 a representative of IOM Addis Ababa attended the issuing office and obtained the following information:

    ·The applicant first enrolled at the school in September [specified year] EC in [a grade]

    …

    ·The applicant was listed as being [age] years of age at time of enrolment

    …

    ·The document was genuinely issued by the school 

    I note that the applicant has declared they were [age] years of age when they enrolled at school in [specified year] EC. This differs to the date of birth declared in the application and suggests that the applicant is older than claimed and may have been over [age] years of age at time of application.

28. The Tribunal notes that the applicants submitted a signed and stamped letter of recommendation from the [named] School, dated ‘[date 1]’ to the Department. The Tribunal presumes that this date uses the Ethiopian calendar. This date converts to [date 2] in the Gregorian calendar. The letter relevantly stated:

    [the visa applicant] is one of the students with good academic performance in grade [specified].

29. The Tribunal accepts this statement from the school that, as at [date 1] EC/[date 2] GC, the visa applicant was in the [specified] grade. This evidence is consistent with the evidence said to have been obtained from the IOM that, in September [specified year] EC, the visa applicant was in the [specified] grade at the school.

30. If the visa applicant has the date of birth that he claims he has, then he would have been [age] years of age on ‘[date 1]’ EC. In these circumstances, the Tribunal does not accept the accuracy of the statement in the Department’s email, extracted above, that ‘the applicant has declared they were [age] years of age when they enrolled at school in [specified year] EC. This differs to the date of birth declared in the application’. Accordingly, the information provided in the school records relating to the age at enrolment is not a reason, or a part of the reason, to affirm the decision under review. To the contrary, the Tribunal considers that, if anything, the evidence obtained from checking the school records supports the applicants’ claim that the visa applicant has the date of birth that he claims that he has.

31. Based on the evidence before it, the Tribunal finds that, at the time of application, the visa applicant met reg 1.14(a)(i). At the time of decision, the visa applicant is over 18 years of age.

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

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

33. The review applicant gave credible oral evidence that, at the time of application and at the time of the hearing, the visa applicant was not married or in a de facto relationship. There is no evidence or information before the Tribunal to suggest otherwise.

34. The review applicant explained that, at the time of application, the visa applicant was still a child. She said that, at the time of application, the visa applicant was a student and she said that, at the time of the hearing, the visa applicant was still a student, studying for his [qualification].

35. The Tribunal accepts the review applicant’s oral evidence.

36. Accordingly, the Tribunal is satisfied that 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)

37. 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.

38. As noted earlier, the Tribunal is satisfied that the review applicant is an Australian permanent resident. The issue for determination is whether she is a ‘relative’ of the visa applicant.

39. It is claimed that the review applicant is the visa applicant’s paternal aunt. A nephew is included within the definition of relative in reg 1.03.

40. While the delegate’s decision did not address the issue of whether the visa applicant met reg 1.14(a)(iii), it was submitted, in the written submissions of 17 May 2023, that this issue was not in dispute because ‘DNA testing has confirmed that ‘[name][1] and [the sponsor] are siblings’.

    [1] The visa applicant’s claimed father.

41. The Tribunal has reviewed the DNA test results which are on the Department’s file. On 13 September 2018, [Agency 1] reported that the analysis of the DNA samples confirmed that:

    [the sponsor] and [the visa applicant] are approximately 20 times more likely to have the DNA profiles observed if they are related as aunt and nephew compared to unrelated individuals.

    ·Based on this result there is moderate support for the proposition that [the sponsor] and [the visa applicant]  are related as aunt and nephew compared to unrelated individuals.

42. The cover letter to the report explained:

    Unlike direct paternity testing, kinship/relationship DNA testing, in some circumstances may not be as straightforward (or conclusive), so this must be taken into consideration when reading the attached report.

43. Based on the evidence, the Tribunal is satisfied that the visa applicant is the biological nephew of the review applicant. Accordingly, the Tribunal is satisfied that 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)

44. 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.

45. It will be recalled that the delegate refused the application for the visa because he was not satisfied that, at the time of application for the visa, the visa applicant met reg 1.14(b).

46. At the time of application, the visa applicant claimed that his father was [Father A] and that he was dead and that his mother was [Mother A] and that she was of unknown whereabouts. In this review, the same claims have been made.

    Is [Father A] (the claimed father) dead?

47. It is claimed that the review applicant and the visa applicant’s father, [Father A], were siblings. As noted above, there is DNA evidence suggesting that the review applicant and the visa applicant are related as claimed.

48. The Tribunal notes that the visa applicant’s birth certificate issued on ‘[date]’ (at folio 26 of the Department’s file) names [Father A] as his father.

49. In the primary decision, the delegate noted the review applicant’s claim that [Father A] had passed away of an illness. The delegate also noted that, on 14 May 2018, the Department had requested a death certificate in support of the claimed death of [Father A] but that by 19 November 2018, which is when the delegate made the refusal decision, no death certificate had been provided. Accordingly, the delegate was not satisfied that [Father A] was deceased.

50. In this review, it was submitted, in the written submissions of 17 May 2023, that ‘[Father A] died on [date 3]’ (presumably Gregorian calendar). At the hearing, the review applicant gave oral evidence that he had passed away because of illness. The Tribunal notes that this is consistent with her evidence in her signed statement of 12 April 2016 which is on the Department’s file in respect of the related case, AAT reference number 1837246.

51. The Tribunal has had the benefit of more evidence in support of the claim that the visa applicant’s father is deceased than what had been before the delegate.

52. In this review, the review applicant submitted a copy of the death certificate, and English translation, for [Father A] stating that he died on [date 3]. The death was registered on [another date]. The late registration of the death does not cause the Tribunal any concern because the Tribunal is mindful that it is not customary to register deaths, let alone immediately, in Ethiopia in the way that it is in Australia. A photograph was also submitted from the grave site.

53. Extensive documentary evidence was also submitted that various friends and relatives were aware that the visa applicant’s father was deceased. See the petition signed by five different people who have all known the review applicant for many years as well as the statutory declarations made by the review applicant’s friends [Friend B] and [Friend C], both made on 2 December 2022. In particular, the Tribunal notes [Friend B’s] declaration that ‘I recall [Father A] and his son [named] used to live with his mother until he passed away in July [year]’.

54. Further, at the hearing, the Tribunal had the benefit of hearing the credible oral evidence, in person, from the review applicant (mentioned above) as well as from [Sister A] (the review applicant’s sister) and [Friend A] (a family friend). Both [Sister A] and [Friend A] confirmed that they were aware that the visa applicant’s father had passed away.

55. Having considered and weighed all the evidence cumulatively, the Tribunal finds that [Father A]—the visa applicant’s father—died on [date 3] (presumably Gregorian calendar). Accordingly, at the time of the application for the visa on 31 May 2016, the visa applicant could not be cared for by his father because he was deceased.

    Is [Mother A][2]/[Mother A variant 1][3] (the claimed mother) of unknown whereabouts?

    [2] This is the spelling used in the Form 47CH and by the delegate in the primary decision.

    [3] This is the spelling used by the review applicant and the representative in their written materials.

56. The Tribunal notes that the applicant’s two birth certificates filed with the Department (folios 26 and 27) both name [Mother A] as the visa applicant’s mother. 

57. In the primary decision, the delegate noted the claims that:

    ·the visa applicant’s claimed parents— [Father A variant] and [Mother A]—had not been legally married;

    ·when the visa applicant was [age] years of age, [Mother A] brought the visa applicant to [Father A variant] (who was then living with his mother); and

    ·[Mother A] has not been seen or heard of since that time.

58. The delegate also noted the review applicant’s statement, of 5 June 2018, that the case was complicated. The delegate found that no evidence had been submitted to support the claimed disappearance of [Mother A] or efforts to locate her. The delegate concluded by stating that, based on the evidence, they were not satisfied that the visa applicant’s mother was dead, permanently incapacitated or of unknown whereabouts. As has been explained, the delegate refused the visa, in part, for this reason.

59. In this review, it was submitted, in the written submissions of 17 May 2023, that ‘[Mother A variant 2] has been missing since about [year]’.

60. At the hearing, the review applicant gave credible oral evidence that no one had heard from [Mother A variant 2] since she had left the visa applicant with [Father A variant] and [Father A variant’s] and the review applicant’s mother ([Ms A]) when the visa applicant was [age] years of age. The review applicant told the Tribunal that, because [Father A variant] and [Mother A variant 2] had not been married, at an early point, [Mother A variant 2] had brought the visa applicant to [Ms A] to show her the baby. She said that on this first occasion, [Mother A variant 2] had then taken the visa applicant away with her. However, later, when the visa applicant was [age] years of age, [Mother A variant 2] had brought the visa applicant to [Ms A] and had left him there. The Tribunal notes that this oral evidence is broadly consistent with the evidence the review applicant gave the Department in her signed statement of 12 April 2016 and in her email of 5 June 2018. The review applicant also told the Tribunal that [Mother A variant 2’s] family may have pressured her to have nothing further to do with [Father A variant].

1. Although the delegate did not refer to the steps the Department took to check the visa applicant’s school records in the primary decision, it was submitted, in the written submissions of 17 May 2023, that the delegate had given some weight to the school reports as suggesting that the visa applicant’s mother may have registered him at the school. The written submissions urged the Tribunal to give little weight to the school reports on the Department’s file because the reports are ‘confusing’ and appear to have inconsistencies.

2. From the Tribunal’s review of the documents on the Department’s file, the Tribunal notes the difference between information in the document titled ‘School Records – Question Form’ (folio 63) and the internal email of 24 October 2018 (folios 64–65).

3. In the document titled ‘School Records – Question Form,’ some of the questions and answers were as follows:

   Who is listed as the guardian at time of first enrolment: No record found

   What is the declared relationship between the guardian and applicant: No record found

   Has the school had direct contact with the parents: Yes

   When was the last time the school had contact with the parents: June [specified year] EC

4. The Tribunal notes that the document titled ‘School Records – Question Form’ uses the words ‘parent’ and ‘guardian’ interchangeably.

5. Interestingly, in the internal email of 24 October 2018, it was relevantly stated that the representative of IOM Addis Ababa had reported that:

   No information was held in relation to who the parents or guardian of the applicant were

   The school had direct contact with the responsible person for the applicant prior to their enrolment in June [specified year] EC

6. That is, the internal email in effect acknowledges that it is not accurate to state that, in June [specified year] EC, the school had direct contact with the parents, but rather the school had direct contact with the responsible person for the applicant at that time.

7. In the circumstances, the Tribunal finds that there is no evidence to suggest that [Mother A] was the person who registered the visa applicant at the school. Accordingly, the information in the school reports at folios 63–65 is not a reason, or a part of the reason, to affirm the decision under review.  

8. It was submitted, in the written submissions of 17 May 2023, that, based on the common law ‘presumption of death,’ the visa applicant’s mother was deceased or alternatively, that she is of unknown whereabouts. It was submitted:

   For a country with a long history of war and famine, the early 2000s were a particularly bad period in the history of Ethiopia. From May 1998 to June 2000 a civil war was fought between Ethiopia and Eritrea. Aside from the obvious causalities and destruction of the war, the country was economically devastated and food production reduced. Both countries then commenced reciprocal ethnic cleansing detaining and expelling members of the other ethnic group leading to thousands of displaced people. Famine then struck in 2002–2003 affecting an estimated thirteen million Ethiopians and thousands of people died of starvation and associated illness. A country report confirming the war and famine has been uploaded.

   It is believed by relatives [of] … [the visa applicant] that [his mother] undertook the perilous journey of travelling towards the Middle East to seek employment and to support [her family] and died during the journey. No contact has been had with [the] mother for about two decades. In these circumstances it would be reasonable to assume that the [mother is] deceased.

   …

   Alternatively, if the Tribunal determines that there is insufficient evidence to confirm that the … [mother of] [the visa applicant] [is] deceased, we submit that there is compelling evidence that [she is] of ‘unknown whereabouts’. 

   In assessing unknown whereabouts, the PAMs directs that claims should be investigated by interviews to learn what efforts have been made to locate the missing parent and what time period has elapsed between the dates of the parent’s disappearance and the visa application and the care arrangements for the child.

   Since arriving in Australia in 2011 [the sponsor] has co-ordinated the care, schooling and provided financial support for … [the visa applicant].

   From 2012, four years prior to the visa [application] being lodged, [the sponsor] has been consistently sending funds to support the [child] made out directly in the [name] of the [child], rather than to a parent or other person.

   In April 2015, a year before the visa application, [the sponsor] obtained custody [order] for the [child], and in [that order] it is declared that the [father is] deceased and the [mother is] missing.

   The PAMs directs that the time gap between the disappearance and the visa application and the care arrangements are key factors for a decision maker to consider. It is about twenty years since the [mother] went missing and [the sponsor] has been caring for the [child] since then.

9. At the hearing, the review applicant told the Tribunal that she had arranged to have legal custody of the visa applicant and the visa applicant in the related case (AAT reference number 1837246). The Tribunal notes the documentary evidence in support of these claims. The review applicant told the Tribunal that she saw the two visa applicants as not only her nephew and niece respectively, but also as her children. She explained that she had no children of her own.

10. In this review, extensive documentary evidence was submitted that various friends and relatives were aware that the visa applicant’s mother was of unknown whereabouts. See the petition signed by five different people who have all known the review applicant for many years as well as the statutory declaration made by the review applicant’s friend [Friend B] on 2 December 2022.

11. The Tribunal also had the benefit of hearing the credible oral evidence, in person, from the review applicant (mentioned above) as well as from [Sister A] (the review applicant’s sister) and [Friend A] (a family friend). At the hearing, [Sister A] confirmed that she was aware that the visa applicant’s mother was of unknown whereabouts. She told the Tribunal that, because she had not been living in Ethiopia at the time, she did not know about the circumstances of the visa applicant’s mother. She said that all she knew was that the review applicant had been doing all she could to provide support and care to the visa applicant. [Friend A] also confirmed that she was aware that the visa applicant’s mother was unable to care for the visa applicant. [Friend A] also told the Tribunal that she was aware that the review applicant was supporting the visa applicant and that she knew that the review applicant was always thinking of the visa applicant and was stressed because of her concern. [Friend A] said that she knew that the review applicant sent money to support the visa applicant and, when short of money, had asked to borrow money from her ([Friend A]) for this purpose.

12. The Tribunal accepts and gives weight to the credible oral evidence given at the hearing as well as to the documentary evidence (including the evidence in support of the claim that the review applicant has taken responsibility for the visa applicant’s care, including money transfers and phone records).

13. Having considered and weighed all the evidence cumulatively, the Tribunal finds that [Mother A variant 2] —the visa applicant’s mother—has been of unknown whereabouts since [year], when the applicant was about [age] years of age.[4] Accordingly, at the time of the application for the visa on 31 May 2016, the visa applicant could not be cared for by his mother because she was of unknown whereabouts or possibly dead. The Tribunal finds that, at the time of this decision, the visa applicant’s mother is either of unknown whereabouts or deceased.

    Conclusion on reg 1.14(b)

    [4] As the Tribunal has found that the visa applicant was born on a particular date in the second quarter of [specified year] (Gregorian calendar), it follows that he turned [age] years of age on that particular date in the second quarter of [specified year] (Gregorian calendar).

14. Having considered and weighed all the evidence cumulatively, the Tribunal is satisfied that 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)

15. 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.

16. There is nothing in the information or evidence before the Tribunal to suggest that the grant of a visa to the visa applicant would not be in his best interests. Indeed, to the contrary, it appears that it would be in his best interests. The review applicant told the Tribunal that the visa applicant had no family in Ethiopia.

17. Accordingly, the Tribunal is satisfied that reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

    CONCLUSION

18. Given the findings above, cl 117.211 is met. In addition, the Tribunal finds that the visa applicant does not continue to satisfy the criterion in cl 117.211, but only because the visa applicant has turned 18. It follows that cl 117.221 is met.

19. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal 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.

    Justine Clarke
    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.