Sheikh (Migration)

[2022] AATA 4762

Sheikh (Migration) [2022] AATA 4762 (12 December 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ubah Ali Sheikh

VISA APPLICANTS:Mr Abdulrashed Mohamud Ali Sheikh
Ms Fardowsa Mohamud Ali Sheikh
Ms Rahma Mohamud Ali Sheikh
Ms Zeinab Mohamud Ali Sheikh

REPRESENTATIVE:  Ms Tania Irena Mykyta

CASE NUMBER:  2111477

HOME AFFAIRS REFERENCE(S):          2017023416

MEMBER:Brendan Darcy

DATE:12 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named 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 12 December 2022 at 1:48pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – death of the visa applicants’ parents – one applicant’s biological family is unknown – DNA testing results – passports issued without birth certificates – child-parent relationship with adoptive parents – limited evidence of parental deaths – best interests of the visa applicants – 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, 1.04, 1.14

CASES

EC v MIMIA (2004) 138 FCR 438
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 4 August 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 28 August 2017. 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. For the purposes of this decision, the review applicant, Ms Ubah Ali Sheikh, will be referred to as the sponsor; the review appciant; the first named visa applicant, Abdulrashed Mohamud Ali Sheikh, will be referred to as the first applicant; the second named visa applicant, Ms Fardowsa Mohamud Ali Sheikh, will be referred to as the second applicant; the third named visa applicant, Ms Rahma Mohamud Ali Sheikh, will be referred to as the third applicant; and the fourth named applicant,  Ms Zeinab Mohamud Ali Sheikh, will be referred to as the fourth applicant

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 which requires the applicant to be to be an orphan relative of an Australian relative of the applicant.

5. The delegate refused to grant the visas because the visa applicants did not meet cl 117.211 of Schedule 2 to the Regulations because criteria for an Orphan Relative under regulations 1.14 was not met.

6. The review applicant appeared before the Tribunal on 27 October 2022 to give evidence and present arguments. The hearing was adjourned after a loss of interpreting support.

7. A resumed hearing was held on 8 December 2022 at which the review applciant attended. The Tribunal also received oral evidence from each of the visa applicants and witnesses, Safia Hussein Soleman and Mohamed Abdi. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

8. The review applicant was represented in relation to the review.

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

   consideration of claims and evidence

10. The issue in the present case is whether the visa applicants meet the definition of ‘orphan relative', pursuant to regulation 1.14.

    Background and evidence

11. This Class AH Subclass 117 (Orphan Relative) visa application was lodged 28 August 2017,

12. The first applicant (Abdulrashed Sheikh), it is claimed, was born on 8 November 2001 in Mogadishu, Somalia. He was 15 years of age on the date of application, and is a citizen of Somalia.  

13. The second applicant, Fardowsa Mohamud Ali Sheikh was born on 1 January 2003. The third applicant, Rahma Mohamud Ali Sheikh was born 2 June 2004. The fourth applicant, Zeinab Mohamud Ali Sheikh was born 1 May 2005.

14. Each visa applicant claims to be born in Somalia, and to be citizens of the Federal Republic of Somalia. In their visa application form, all visa applicants have listed their country of residence to be Kenya.

15. The sponsor of this Orphan Relative visa application was born on 5 May 1980 in Somalia. The sponsor acquired Australian citizenship on 31 January 2005. The sponsor (born 5 May 1980) claimed to be the paternal aunt to the visa applicants. The sponsor’s own parents are listed as deceased. The sponsor’s husband was born on 10 January 1972 and acquired Australian citizenship on 25 January 2013.

16. In a statutory declaration dated 22 August 2017, the sponsor claimed that she shared the same father as her brother, Mohaumud Ali Sheikh, although they had different biological mothers. It further states her brother’s wife, Dhofa Ahmed Arab, died in early 2015 to natural causes, while her brother was killed in a bomb explosion in Mogadishu in June 2016. There were no certifying documentation relating to either death. Since the death of the sponsor’s brother and his wife, the sponsor has been the sole provider for their three children who were related to Kenya for their safety. The sponsor further stated the children do have birth certificates, although they have Somali passports.

17. In a statutory declaration by the sponsor dated 22 August 2017, she declares she is the applicant’s paternal aunt and that all applicants are siblings, children of her half-brother, Mohamud Ali Sheikh. She declared that birth certificates and death records were not available for the children or for the deaths of the parents.

18. On 30 July 2019, the Department requested that each of the visa applicants provide copies of school records for 2017 to the present; evident parents were deceased; and offering DNA testing.

19. In August 2019, the Department received a statutory declaration from the sponsor. It is dated 8 August 2019 that there are no school records, limited information about their parent’s and no death certificates created at the time of their deaths. This, it was argued, was common in Somalia.

20. This statutory declaration further advised that the third applicant was not biologically related to the other applicants. The declaration alleged that the third applicant was found on the roadside and was taken in by the sponsor’s brother and his wife. The third applicant’s biological family is unknown, and she has known no other family.

21. Also attached was a statutory declaration signed by Safi Hussein Soleman which outlines the declarant providing an account that the father of the applicants was the half-brother of the sponsor and that she as a witness to the death and funeral of the applicant’s mother.  

    DNA testing results

22. Genomic Diagnosis received buccal swabs from the sponsor on 9 September 2019 and each of the visa applicants on 4 October 2019.

23. On 14 October 2019, Genomic Diagnostics forwarded its kinship DNA analysis to Australia’s diplomatic mission in Nairobi. Based on autosomal STR results, Genomic Diagnostics concluded the following:

    ·     It is unlikely that the third applicant and fourth applicant are related as biological half siblings, and it is extremely unlikely they are related as biological full siblings.

    ·     It is at least unlikely that the third applicant is related to the other applicants as a biological sibling.

    ·     There is extremely strong support for the proposition that the first, second and third applicants are related to each other as biological full siblings.

    ·     It is unlikely that the first applicant and the third applicant are related as biological half sibling and it is extremely unlikely that first applicant and the third applicant are related as biological full siblings.

    ·     It is unlikely that the second applicant and the third applicant are related as biological half siblings and it is extremely unlikely that the second applicant and the third applicant  are related as biological full siblings.

    ·     It is unlikely that the sponsor and third applicant are related as biological aunt and niece.

    ·     There is moderate support for the proposition that sponsor and the fourth applicant are related as biological aunt and niece.

    ·     there is strong support for the proposition that the sponsor and the first applicant and are related as biological aunt and nephew.

    ·     It is unlikely that the sponsor and the second applicant are related as biological aunt and niece. However, as there is extremely strong support for the proposition that the first, second and fourth applicants are related as biological full siblings, it can be inferred that Ubah Sheikh is also related as biological aunt to the second applicant.

24. On 4 August 2021, the delegate refused each of the visa applicants a Subclass 117 visa in separate decisions with separate decision records.

    Evidence before the Tribunal

25. A valid application for review was lodged with the Tribunal on 30 August 2021, along with the relevant Departmental decision records.

26. As mentioned above, a hearing was conducted on 27 October 2022. An interpreter in the Somali and English languages was present.

27. On 20 October 2022, the Tribunal received a legal submission prepared by the parties’ representative. It included a number of attachments, including evidence of remittances to the applicants sent by the sponsor.

28. Of particular interest was a statement dated 13 September 2021 by Mohamed Abdi. The statement claimed to have been a neighbour of the applicants’ father and testifies that the father of the applicant had been a porter at Mogadishu’s Naasa-Hablood Hotel when he was killed by an explosive hitting the hotel. It further states that body of the applicants’ father was never found.

29. As mentioned above, a scheduled hearing was conducted on 27 October 2022.

30. Prior to a resumed hearing, the Tribunal received the following documents:

    ·     A legal submission prepared by the parties’ representative;

    ·     A statutory declaration by the representative dated 4 November 2022, indicating that she had received instructions prior to the lodgement of the visa; Attached was a copy of the representative dated notes for the initial consultation from 25 July 2017;

    ·     A statutory declaration from Fartun Farah dated 3 November 2022 outlining the customary practice of the adoption of foundlings in Somalia and the cultural sensitivities regarding disclosing non-biological parentage to adopted children. Ms Farah had been an observer at the earlier hearing; and

    ·     An October 2000 decision regarding a set aside decision by the Migration Review Tribunal in relation to an application for a Class TK Subclass 820 Extended Eligibly visa. 

31. A resumed hearing was held on 8 December 2022, at the end of which no further documents or submissions were required.

32. There are no non-disclosure certificates attached to the applicants’ departmental or Tribunal files.

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

33. 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.

34. ‘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. 

35. In the present case, the sponsor Ubar Ali Sheikh, is the relevant Australian relative and claims to be the aunt of the visa applicants.

36. For the reasons below, the visa applicants were orphan relatives of an Australian relative at the time of application. Furthermore, the visa applicants are orphan relatives of an Australian relative at the time of this decision.

37. Therefore, the Tribunal finds that cl 117.211(a) is met in relation to the first, second, third and fourth applicant, and finds that cl.117.211(b) does not continue to be met at the time of decision.

    Age – reg 1.14(a)(i)

38. Regulation 1.14(a)(i) requires that the visa applicants has not turned 18.

39. At the time of application, each of the applicants claimed to be under the age of 18.  While birth certificates were provided, their dates of birth were recorded in their submitted passport bio-date pages of their respective passports that were issued in Kenya by Somali officials.

40. The Tribunal enquired into how these passports were issued, given it was claimed Somali authorities did not register their births or issue birth certificates. It was explained that the passports were issued by the Somali authorities in Nairobi. The Tribunal has been able to locate country information to support this.[1] According to Norway’s country of origin information centre, Landinfo, applicants at Somali embassies are requested to submit Somali birth certifies but it is not essential, as applicants can be issued a ‘Declaration of Nationality’ from embassies. It is noted that this practice highlights that very few applicants have a Somali birth certificate. A ‘Declaration of Nationality’ is normally issued based on an interview. This appears to be a formality unless the applicants for passports do not speak Somali fluently or do not have Somali names. Then applicants may be treated suspiciously. 

    [1] >

    Such a process is obviously open to travel documents being obtained fraudulently.

41. Notwithstanding the Tribunal’s overall adverse credibility concerns regarding reliability of these critical claims raised in this matter which are outlined below, the Tribunal accepts the Somali passports to be genuine identity documents that were lawfully obtained that reflect with sufficient accuracy the visa applicants’ dates of birth.

42. Based on this available country information, the Tribunal accepts the applicants’ passports were genuine documents reflecting their respective dates of birth which in turn reflected the applicants to be minors at the time of application.

43. Accordingly, reg 1.14(a)(i) was met at the time of application in relation to each of the visa applicants.

44. At the time of wiring this decision, only the fourth applicant was a minor. However, the first, second and third applicants do not continue to be met reg. 1.14(a) at time of decision, but only because they turned 18.

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

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

46. During the scheduled hearing, the Tribunal asked each of the visa applicants about their marital status. Each of them responded that they have never been engaged to marry, married or lived in a de facto partner.

47. With no evidence to the contrary, the Tribunal accepts that each of the applicants did not have a spouse or de facto partner at the time of application.

48. Accordingly, in relation to each of the visa applicants, 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)

49. 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.

50. There is no suggestion the sponsor is not an Australian citizen.

51. The relevant issue under this subregulation is whether the sponsor is a relative of the visa applicants.

52. Based on 2019 DNA analysis, the Tribunal accepts there is strong support that the sponsor was the biological aunt of the first, second and fourth applicants. This is despite there being some evidence the sponsor was unlikely to be related to the second applicant. However, there is evidence that the fourth applicant is the full biological siblings of the first and fourth applicants, indicating the overall kinship DNA analysis supports the proposition that the second applicant and the sponsor are relatives as claimed.

53. Accordingly, the Tribunal is satisfied that the first, second and fourth applicants are relatives of the sponsor for the purposes of the definition of part (b)(ii) of relative under regulation 1.03.

54. Accordingly, in relation to the first, second and fourth applicants, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

55. With regard to the third applicant, the evidence is that she is not biologically related. Neither has there been any documentary evidence of formal adoption or documentary acknowledgement of the third applicant being absorbed into the same family unit as the other visa applicants. The Tribunal accepts that formal adoptions in Somali are not the norm, and that traditional kinship adoption is reasonably widespread.

56. In this case, the review applicant claimed the third applicant was foundling in which she was found abandoned soon after her birth and adopted by the biological father and mother of the other visa applicants to save her life. The third applciant was then seamlessly absorbed into the family.

57. The Tribunal notes that the application forms at the time of application does not mention that the third applicant is a non-biological child of the claimed deceased parents. This was only disclosed to the Department after a request for DNA testing.

58. With no documentary or biological evidence to corroborate the third applcant to be a relative of the review applicant, the Tribunal asked the review applicant and the third applicant some challenging questions about their knowledge about the visa applicants’ parents.  

59. When the Tribunal did so, it decided not to ask the third applicant about her knowledge of being a foundling and about the reasons for this refusal decision in relation to the matter. This was because the review applicant had claimed that the third applicant was unaware of her adoption into the family as it was not the practice in Somalia to do so. The review applicant implored the Tribunal that such a disclosure was usually made prior to a foundling’s marriage and that the wider family wanted to spare her the emotional turmoil and social stigma that arises for foundlings and abandoned children in general.

60. At the end of this process, the third applicant demonstrated to the Tribunal she had a solid and expected knowledge about her claimed parents whereby the Tribunal was persuaded that the third applcaint was in a child-parent relationship with Mohumud Ali Sheikh and Dohfa Ahmed Arab and that she believed them to be her biological parents.

61. It is a time of application requirement for both a Subclass 117 and 837 visa that the applicant is an orphan relative or is not an orphan relative only because he or she has been adopted by the Australian relative.

62. Pursuant to regulation 1.03, “parent” includes an adoptive parent and a step-parent. The concept of adoption is defined in regulation 1.04 and includes the concept of customary adoption.

63. The scope of this alternative was considered in the case of EC v MIMIA, where the applicant sought to argue that the provision applied to an applicant who was adopted, but not by an existing relative. The Court rejected this construction of the provision and held that the Explanatory Statement to Migration Amendment Regulations 2002 (Cth) (No 2) confirmed that cl 117.211(b) provides for the situation where an adoption prevents a person from satisfying the definition of ‘orphan relative’ and not for the circumstance where an adoption enables a person to satisfy the definition of ‘relative’ but not ‘orphan relative’. In other words, the relative relationship must exist outside of, and predate, the adoption relationship in order for applicants to meet the alternative criteria in circumstances where there has been an adoption.

1. Available country information indicates that formal adoption of the kind referred to in paragraph (1)(b) of regulation 1.04 is not and was not available in Somalia. What processes are mandated in Somalia under Sharia law may amount to formal adoption. However, Somali’s poor administrative capacity to means it is also “not reasonably practicable” in Somalia to access formal adoption especially in the context of prolonged conflict and even contending systems of governance over different parts of that country.

2. The guidance provided in regulation 1.04 on adoption directs us to consider the usual practices and customs in the specific culture. There is a plethora of situations where people in Somalia have taken on the care of children because their parents have died or are missing. The Tribunal accepts the argument that in many cases, it is family members, sometimes quite remote family members, who take on the care of the orphaned child.

3. The Tribunal accepts that the third applicant as a newly born who was customarily adopted at birth after being abandoned by her birth mother. It is accepted that she had developed had a long and close bond with Mohamud and Dohfa as her birth parents. There exists a child-parent relationship between the third applciant and her adoptive parents.

4. Therefore, the sponsor is the aunt, albeit not the biological aunt, and ‘relative’ of the third applciant in the same meaningful way as the sponsor is the aunt of the other visa applicants, pursuant to regulation 1.03 which defines the relevant subgroups of ‘relatives’.

5. It follows in making this finding that the ‘relative’ relationship between the third applicant and the Australian relative (the sponsor) existed outside of and predated the relationship as either ‘orphan relatives’ or any adoptive relationship between them pursuant to regulation 1.04.

6. Accordingly, the operation of cl 117.211(b) does not prevent the applicant being an orphan relative.

7. Accordingly, in relation to the third applicant, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time

   No parental care – reg 1.14(b)

8. 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.

9. It is claimed by the parties that the parents of the visa applicants, Mohumud Ali Sheikh and Dohfa Ahmed Arab, are both dead prior to the time of application. There are no corroborating documents, such as death certificates or hospital records, were ever submitted to support this.

10. Firstly, it is claimed the mother of the visa applicants died in Mogadishu of natural causes, probably from complications arising from untreated diabetes. The death is said to have taken place in early 2015. A statutory declaration from 2019 by Safia Hussien Soleman claimed to be an eyewitness of her dying and subsequent funeral and/or burial of Dohfa Ahmed Arab. The account claimed the witness had been visiting the brother of the review applicant and his family on behalf of the review applicant. Safia provided oral evidence at the scheduled hearing. Aspects of the witness’ testimony did not closely correlate with her written claims. In the absence of any corroborating documentary evidence, this did invite the Tribunal to doubt her eyewitness account. On balance, the Tribunal notes that several years have passed since the claimed event. Given the passage of time, the Tribunal accepts the fallibility of memory likely played a role in these inconsistencies.

11. Secondly, it is claimed that the father of the visa applicants died at a hotel in Mogadishu. It occurred on 25 June 2016 terror outrage. It has been claimed that the father had been seeking work at the hotel as a porter when the attack occurred, and that the father’s body was not identified due to the intense impact of the explosion. The explosion attracted international press reportage which is easily located.

12. For instance, the BBC reported on 25 June 2016:

    An attack by the Islamist group al-Shabab in a hotel in the Somali capital Mogadishu has left at least 14 dead, police say.

    Security forces retook the Naso-Hablod hotel after gunmen stormed it and took hostages, officials said.

    Those killed are reported to include security guards, civilians and some of the attackers.

    Al-Shabab militants frequently carry out attacks in the city in their bid to topple the Western-backed government.

    A suicide bomber first detonated a car with explosives at the gate of the hotel, and the attackers moved in, officials said.

    Once inside, the gunmen shot randomly at guests, a witness said.

    "They were shooting at everyone they could see. I escaped through the back door," Ali Mohamud told the Associated Press news agency.

    A gun battle then erupted between the attackers and security force

13. Other reports mention the killing of the State Environment Minister Bur’i Mohamed Hamza, and more than 25 were injured.

14. At the first hearing, the Tribunal asked the review applicant to locate, to the best of her ability, any reportage in the Somali-language press, which may have identified the name, given the explosion included some high profiled fatalities at a prominent hotel. At the resumed hearing, the review applicant was unable to assist the Tribunal in this regard. She claimed that while prominent persons will be mentioned in the press, the Somali media do not usually report ordinary persons or person of low status, such as her brother, who was struggling porter, and because deaths by Al-Shabab were so frequent the press did not report the victims.  On balance, the Tribunal accepts this explanation.

15. The Tribunal also received a written statement and oral evidence from Mohamed Abdi. Mohamed, who claimed to be a long-term neighbour of the visa applicant’s family, further claimed to be at afternoon prayers at a nearby mosque with the visa applicant’s father, just before he went to work nearby the hotel. Mohamed did not claim to be an eyewitness but that he tried to find the father as either injured or deceased at one of the local hospitals. Mohamed also claimed to have played a role in materially helping the visa applicants depart Somalia for Kenya. The Tribunal found the applicant’s written and oral accounts were consistently posited; and, as such, the accounts did not invite any adverse credibility concerns.

16. As discussed in the hearing, the Tribunal has some misgivings in the lack of documentary verification of the deaths of the visa applicants’ parents. Nonetheless, the Tribunal is cognisant that Somalia’s administrative capacity to register deaths is very poor. On this occasion, it has provided the visa applicants the benefit of the Tribunal’s doubts and finds there are insufficient reasons not to accept the claimed deaths of the visa applciants’ parents occurred prior to the application being lodged for the reasons claimed, as reliably put.

17. Therefore, the Tribunal has formed a view based on the weight of credible evidence that the visa applicants cannot be cared for by either parent because the relevant parents are deceased. It is satisfied the visa applicants, having become orphans, was living under the daily care and control of their aunt and review applicant, and her Australian-based family more generally. The sponsoring aunt decided to remove the visa applicants from Somalia to Kenya for their personal safety and well-being.

18. The Tribunal finds that each of the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

19. Accordingly, 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)

20. 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.

21. The visa applicants are Somali nationals. The Tribunal acknowledges that their country of nationality, after 25 years of conflict and political instability, has a fragile economy. Somalia is the fifth poorest country in the world, with income per capita estimated at USD435 and a GDP of around USD5.9 billion. Half the population lives below the poverty line (as defined by the World Bank; less than USD$1.90 per day). The security situation in Somalia is highly volatile and security incidents and crime are a common feature of everyday life. Somalia is ranked first of 178 countries on the 2016 Fragile States Index and seventh on the 2016 Global Terrorism Index. Inter-communal violence is the major destabilising factor in Somalia, including armed conflict between clans or warlords. Other factors include: protracted conflict, severe humanitarian conditions, widespread corruption, piracy, border disputes with Ethiopia and Kenya, and the presence of al-Shabaab and other Islamist groups.

22. The applicants as orphan relatives of the review applicant have been residing in Kenya as a third country in relative safety but with few rights and opportunities. They survive only due to the care and munificence of the review applicant and their Australian-based family.

23. The relative and absolute advantages of the visa applicants migrating to Australia with the support of the review applicant are obvious.

24. The Tribunal finds that there is 'no compelling reason' (meaning a 'forceful' reason) to believe that the grant of a visa would not be in the best interests of the visa applicant.

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

    Conclusion

26. Given the findings above and noting that they were all minors at the time of application, cl 117.211(a) is met.

27. Noting the first, second and third applicants are no longer minors, they continue to satisfy the criterion in cl 117.211, but only because the visa applicants have turned 18.

28. The Tribunal finds that fourth applicant – a minor at the time of decision - continues to satisfy the criterion in cl 117.211.

29. It follows that each of the applicants have met the time of decision criteria under cl 117.221.

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

    decision

31. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named 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.

    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.