• cl 117.211 of Schedule 2 to the Regulations; and
• cl 117.221 of Schedule 2 to the Regulations

MIGRATION - Child (Migrant) (Class AH) visa - Subclass 117 (Orphan Relative) - orphan relative of an Australian relative - inconclusive DNA testing - strong evidence of a second degree relationship - permanent incapacity of the father - best interests of the visa applicant - decision under review remitted

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

Nguyen v MIMA (1998) 158 ALR 639

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 May 2024 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant is a national of Somalia and claims to be born in June 2006. He applied for the visa on 27 June 2022. 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 was an orphan relative of the Australian relative. The sponsor (the review applicant) seeks review of the delegate's decision.
3. The review applicant appeared before the Tribunal on 28 August 2024 and 16 December 2024 to give evidence and present arguments. The Tribunal conducted a combined hearing in relation to the three visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
4. The Tribunal has prepared three statements of reasons with respect to the three visa applicants. As their cases raise the same issue and the visa applicants rely on the same evidence, the Tribunal's statements of reasons in these cases are substantially identical.

1. At the time the application was made, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.
2. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
3. 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.
4. 'Orphan relative' is defined in reg 1.14 of the Regulations. An 'Australian relative' is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. A 'relative' means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): reg 1.03.

1. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the visa applicant claimed to be a nephew of the sponsor. It is noted that in the application the visa applicant claimed that his mother is Rahmo Adan Ibrahim and his father is Mohamed Abulahi Mohamed. The visa applicant claimed that his mother was deceased and his father permanently incapacitated.
2. The primary decision record indicates that the visa applicant provided with the application a number of personal identity documents, as well as his parents' identity documents and the sponsor's birth certificate. It is noted that the applicant and sponsor were required to undertake DNA testing to establish their relationship. The Department received results in March 2024 and these show that there is inconclusive evidence of relationship between the visa applicant and the sponsor.
3. The delegate noted that the applicant claimed to be a maternal nephew of the sponsor. The applicant's birth certificate identifies his mother as Rahmo Adan Ibrahim and the mother's birth certificate identifies her parents as Hawa Sheikh Mohamad and Aden Ibrahim. The sponsor's birth certificate lists his mother as Hawa Sheikh Mohamad but does not list a father. The delegate noted, however, that the birth certificates have been recently issued and as such, gave these little weight.
4. The delegate notes that the DNA testing showed that
   1. The visa applicant was practically proven to be related to his brother Hasan Mohamad Abdulahi as full siblings.
   2. The visa applicant was practically proven to be related to his sister Halima Abdulahi as both full sibling and half-sibling btu the likelihood ratio was more likely for a half sibling relationship.
   3. There was inconclusive evidence of relationship between the visa applicant and the sponsor.
   4. The sponsor's relationship with the applicant's brother Hassan Abdulahi was inconclusive.
   5. The relationship between the sponsor and the applicant's claimed sister Halima Abddulahi was 'very likely'.
   6. The first degree relationship between the visa applicant and Ahmed Mohamed Abdulahi was practically proven.
   7. The likelihood ratio of a first degree relationship between Hassan and Halima was 19.5 (very likely) while the likelihood ratio of a second degree relationship is over 90 (very likely).
   8. The first degree relationship and the second degree relationship between Ahmed and Halima are both practically proven but the likelihood of second degree relationship was much higher.
5. The delegate noted that the evidence indicated the visa applicant's relationship as full sibling with his brother Hassan was practically proven but the visa applicant's relationship with the sponsor (and Hassan's relationship with the sponsor) was inconclusive. The delegate also acknowledged that the relationship between the visa applicant and his sister Halima was 'very likely' but the delegate noted that it cannot be assumed this was due to their mother but it could be because they shared a common father who was not biologically related to the sponsor. The delegate noted that the likelihood ratio of the visa applicant's relationship with his sister was higher for the second degree relationship than first degree, suggesting they are half siblings rather than full siblings and that indicates that they have one common parent and not two.
6. The applicant provided to the delegate a number of documents, including birth records, the sponsor's school records, old passport, travel document used for entry to Australia and the UNHCR registration for the visa applicant's mother. The visa applicant stated that the UNHCR document proved the applicant's relationship with his mother, however, the delegate noted that the information on the UNHCR document would have been self-reported and gave this no weight.
7. The visa applicant submitted that he is very likely to be related to his sister who is very likely to be related to the sponsor, hence he is very likely to be related to the sponsor. The delegate did not accept that argument, noting that the visa applicant's relationship with his sister could have been a half-sibling relationship and it was possible that they share a common father rather than the mother, so there was no biological relationship with the sponsor.
8. The visa applicant also claimed that the legislation allowed for a step-uncle / step-nephew relationship but the delegate noted that, firstly, there was no evidence of the marriage of the visa applicant's parents and, secondly, the step-relationship would have ceased upon the death of the visa applicant's mother.
9. Ultimately, the delegate was not satisfied the visa applicant was a relative of the sponsor for the purpose of r. 1.14(a)(iii).

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

1. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicant claims to be born in June 2006. The application for the visa was made in 2002. No concerns have been raised about the visa applicant's age. The Tribunal finds that the visa applicant was under the age of 18 when the application was made. Accordingly, reg 1.14(a)(i) was met at the time of application.

1. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. There is no evidence before the Tribunal to indicate that the visa applicant has a spouse or de facto partner. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

1. 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.
2. The review applicant provided a statement to the Tribunal on 27 August 2024. The review applicant states that his parents had nine children. His sister Rahmo and her husband had 13 children together. They fled Somalia in 2008 and came to Egypt in 2015. He previously sponsored them for a visa but was not successful. The review applicant describes the close relationship between his children and his family and his siter's children and the support he has provided to the visa applicant after their mother's death and their reliance on him.
3. The review applicant states that the delegate's finding that he is not related to his sister Rahmo Aden Ibrahim is 'baseless' and he claims that the supporting evidence demonstrates their relationship and that they have the same parents and the delegate had dismissed the genuine documents. The review applicant states, with respect to the late issuance of birth certificate, that this is common in Somalia which lacks centralised birth registration system. The review applicant submits that the delegate's interpretation of DNA results has been flawed and states that he is prepared to undertake further DNA testing to prove the relationship. The review applicant submits that the father's incapacity has been established through the medical evidence. The review applicant addressed the best interests of the children and the compassionate circumstances of the visa applicants (to which the Tribunal cannot have regard when determining whether they meet the visa criteria). The review applicant refers to the various documents which, he claims, evidence his relationship with the visa applicant.
4. The review applicant provided a statement from DNA labs which claims, essentially, that an 'inconclusive' result does not provide evidence for or against a biological relationship. While the Tribunal accept that evidence, the Tribunal notes that it is up to the visa applicant to prove their eligibility for the grant of the visa and, in this case, to prove the relationship with the sponsor. The fact that the possibility of such a relationship is not excluded does not equate to a positive finding that such a relationship exists.
5. The Tribunal also acknowledges that the visa applicant included a number of historical documents which refer to the family composition that is consistent with the claims made in the present application. However, the Tribunal does not consider UNHCR documents to be probative, since no independent verification of claimed family relationships would have been made at the time these documents were issued. That is, such documents would have relied on self-reporting and they are not, in the Tribunal's view, reliable. The Tribunal also acknowledges that the same family composition has been declared in various visa applications. That may be because the visa applicant was considered to be the child of the stated parents but that may have been due to any type of relationship, whether an adopted child, or a biological child of only one of the parents. That is, the declaration of the visa applicant in the various forms reflects the declarants' perceptions about the family relationships but, on its own, does not satisfy the legal definitions relevant to establishing a family relationship. In this case, there is no dispute that the visa applicant is related to the sponsor. It is the nature of such relationship that must be determined.
6. In oral evidence, the review applicant told the Tribunal that his sister and her husband have always been living together, they had not lived apart or separated, and he cannot explain the difference in the DNA results for the three visa applicants. The review applicant notes that all the historical information supports the claims made about the family composition.
7. The review applicant proposed that the visa applicants and his full biological brother Ahmed undertake another DNA test to prove their relationship, stating this was suggested by the DNA expert. The Tribunal facilitated the DNA testing between the review applicant, the review applicant's sibling Mr Ahmed Adam Ibrahim and the visa applicant. On 29 May 2025 the Tribunal received the results of the DNA test which showed that
   1. the visa applicant's relationship with the sponsor was 'inconclusive' and that they are 0.55 times more likely to be related as second degree relatives than unrelated
   2. the visa applicant's second degree relationship with Ahmed Adam Ibrahim Ibrahim was 'very likely'
   3. the sponsor's first degree relationship with Ahmed Adam Ibrahim was 'practically proven'.
8. The Tribunal sought advice from DNA labs about the interpretation of the above results. On 19 June 2025 the Tribunal received that advice, essentially stating that second degree relationship testing cannot be reliable and an 'inconclusive' result does not indicate the absence of the claimed relationship.
9. The Tribunal has considered the evidence concerning the visa applicant's relationship with the sponsor. The Tribunal has determined that the documentary evidence of such relationship is unpersuasive as documents such as birth records are not contemporaneous and appear to have been obtained for the purpose of the visa application while other documents (such as UNHCR records) would have been based on self-reporting. The two DNA tests had been inconclusive in proving the relationship between the visa applicant and the sponsor but the Tribunal acknowledges the advice from DNA labs that due to the way DNA is 'inherited', second degree relationships cannot always be established through DNA testing. The Tribunal does not draw any adverse conclusions from the fact that the DNA testing has been inconclusive.
10. The Tribunal places considerable weight on the fact that the DNA testing showed the relationship between the visa applicant and the sponsor's brother to be 'very likely' while the sponsor's relationship with his brother is said to be 'practically proven'. In the Tribunal's view, that offers strong evidence of a second degree relationship (as claimed) between the visa applicant and the sponsor. The Tribunal also found the sponsor's evidence about the family circumstances to be credible and plausible and the Tribunal is mindful that the sponsor had consistently declared the same family composition in his previous dealings with the Department. Having regard to that evidence, the Tribunal is satisfied that the visa applicant is the nephew and a relative of the sponsor who is an Australian citizen or permanent resident. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

Is parental care available to the visa applicant?

1. 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.
2. In oral evidence the review applicant told the Tribunal the visa applicant's father has a number of health conditions. He is diabetic, has memory concerns, depression and is withdrawn. He is depressed and isolated. He wanders around and sometimes gets lost. The review applicant states that the father 70 years old and cannot care for the children, it is in fact the children who care for their father.
3. The Tribunal discussed with the review applicant the discrepancies in the medical reports that were provided with the primary application. The Tribunal notes that the three reports were written within a short timeframe but offer different diagnoses and do not indicate how these were arrived at or what assessments may have been completed. The review applicant told the Tribunal that the father had attended many centres and hospitals to undertake tests but the medical reports do not refer to these assessments and that evidence was not submitted. The review applicant states that there are other medical reports which are available but have not been presented. The review applicant undertook to provide additional evidence regarding the father's condition.
4. The review applicant told the Tribunal that the eldest children live elsewhere and eight of the younger children live with their father, including the three visa applicants. The review applicant states that, given the age of the children, they may not need extensive day to day care but they still need fatherly support and support in terms of education, not being attracted by bad behaviour, etc. The review applicant states that the father is not engaging with the children, he is depressed and withdrawn, particularly since his wife passed away, he is forgetful and starts to mix up the children's names. He cannot and does not support the children.
5. The Tribunal attempted to arrange for the visa applicant's father to be assessed by a panel doctor but these arrangements could not be made. The Tribunal invited the review applicant to provide further evidence relating to Mr Mohamed's incapacity. On 16 December 2024 the review applicant provided to the Tribunal a further submission, stating that the visa applicant's father, Mr Mohamed had undergone a number of examinations at a reputable hospital in Egypt, including an MRI Brain, which confirmed the diagnosis of a mild cognitive disorder. The review applicant provided to the Tribunal a copy of the clinical summary which states that the MRI revealed mild small vessels disease and a diagnosis of mild cognitive disorder. In the Tribunal's view, a diagnosis of a mild cognitive disorder does not establish that the father is unable to provide care to the visa applicant. It does not support, in the Tribunal's view, the claims made by the visa applicant and the review applicant about the level of incapacity experienced by the father.
6. The Tribunal is also mindful that this assessment refers to the father's present situation and not his circumstances at the time of application.
7. On 14 May 2025 the review applicant provided a further medical report relating to Mr Mohamed prepared by Dr Anwar. It states that Mr Mohamed sought a psychiatric assessment in March 2025 which was conducted over three sessions. It is stated that Mr Mohamad exhibits symptoms consistent with a major depressive disorder (low mood, executive dysfunction, low self-esteem and guilt) impairing his daily functioning over the past four years and there are concerns for PTSD. It is stated that Mr Mohamed's symptoms remain resistant despite medication and recent assessments indicate progressive neurocognitive decline with memory impairment and executive dysfunction. Dr Anwar has expressed the view that Mr Mohamed is permanently incapacitated and unable to care for himself and fulfil parental responsibilities.
8. The Tribunal has considered the totality of the medical evidence relating to Mr Mohamed. The Tribunal shares the delegate's concerns in relation to the evidence of incapacity submitted with the primary application. In particular, the Tribunal is not convinced that the diagnosis of dementia could have been made after a single consultation with the health professional, as the medical report submitted with the primary application indicates. Further, the Tribunal is mindful that the medical certificates, which were provided with the primary application and which are dated only a few days apart, offer different diagnoses for Mr Mohamed. The Tribunal also notes that the more recent evidence, including the report from Dr Anwar, fails to identify any testing that was carried out and the basis of the conclusions reached by the doctor. It is also problematic that Dr Anwar's report is largely concerned with Mr Mohamed's present circumstances and does not adequately deal with his situation at the time when the application was made, which is when the issue of incapacity needs to be determined.
9. The Tribunal has formed the view that the presented evidence of Mr Mohamed's incapacity is inadequate. Nevertheless, the Tribunal also acknowledges the difficulties in obtaining more persuasive evidence and accepts that all reasonable efforts have been made by the visa applicant to obtain such evidence.
10. Ultimately, the Tribunal has decided to give weight to the report by Dr Anwar, and the evidence submitted with the primary application. While not overly persuasive, that evidence does consistently indicate that Mr Mohamed had some form of cognitive impairment and depression, particularly following the death of his wife. Dr Anwar states that this condition has been in existence for the past four years (although he fails to explain the basis for that statement, noting that he only saw Mr Mohamed recently). On balance, the Tribunal accepts that at the time the application was made and at present, Mr Mohamed was suffering from depression and mild cognitive impairment which affected his capacity to care for the visa applicant. On balance, the Tribunal is satisfied that the visa applicant's father was permanently incapacitated. The Tribunal accepts that the visa applicant's mother is deceased. The Tribunal finds that at the time of application and at the time of decision, the applicant could not be cared for by either parent because each of them was either dead or permanently incapacitated. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

1. 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. The review applicant provided a statement to the Tribunal on 27 August 2024. The review applicant states that his parents had nine children. His sister Rahmo and her husband had 13 children together. They fled Somalia in 2008 and to Egypt in 2015. He previously sponsored them for a visa but was not successful. The review applicant describes the close relationship between his children and his family and his sister's children and the support he has provided to the visa applicant after her mother's death and the visa applicant's reliance on him.
2. The review applicant's oral evidence to the Tribunal is that he has been providing financial support to the visa applicant, paying school fees and some of living expenses. The review applicant told the Tribunal that he has five children, with two younger ones still living at home. He has sufficient space at home to house these children and will consider buying a bigger house.
3. The review applicant states that he initially sponsored the visa applicants in 2010 but their application was rejected. He also supported the family to move to Egypt but they have no future there as they are refugees and have no rights there.
4. The Tribunal is satisfied that the sponsor has provided practical, financial and emotional support to the children and intends to continue to do so. The Tribunal is satisfied that he has the capacity to support the visa applicant. Nothing adverse is known with respect to the sponsor that might suggest his relationship with the visa applicant is not in his best interests. The Tribunal is satisfied 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. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.
5. Given the findings above, the Tribunal finds that cl 117.211 was met when the application was made and continues to be met at the time of decision. The visa applicant meets cl 117.221.

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

1. The Tribunal sets aside the decision under review and 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

Date(s) of hearing 28 August 2024; 16 December 2024

Representative for the Applicant: Mr Baker Al Musawi (MARN: 0601647)