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Tribunal: Senior Member Kira Raif

A delegate of the Minister for Immigration and Border Protection refused the visa applicant’s application for a Subclass 117 (Orphan Relative) visa, a type of child visa. On 27 March 2018, the Administrative Appeals Tribunal remitted the decision to the Department of Immigration and Border Protection (the Department) for reconsideration with the direction that the visa applicant met certain criteria necessary for the visa.

The visa applicant is a child residing in Somalia. Both of his parents were deceased and he was in the full care of his maternal aunt since he was a few months old. The visa applicant’s aunt applied to the Tribunal for a review of the Department’s decision and was therefore the review applicant. The review applicant and her immediate family are all Australian citizens or permanent residents. She claimed that she was unwilling to return to Australia with her partner as they had nowhere to leave the child and did not want to separate from him. Death Confirmation Certificates were provided to the Department to support the claimed deaths of the visa applicant’s parents. After seeking verification, the Department received advice that two certificates were fraudulent and not registered.  

The Department refused to grant the visa due to clause 117.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) which require a visa applicant to satisfy the public interest criteria set out in item 4020 of Schedule 4 to the Regulations (PIC 4020). One criterion is that there is no evidence a bogus document or false or misleading information has been provided to an officer of the Commonwealth in relation to the application for the visa. This requirement may be waived if there are certain compelling or compassionate circumstances justifying the granting of the visa.[1]

The visa applicant submitted that he believed the documents to be genuine as they were properly obtained from the hospital. The Tribunal found that that the visa applicant had given a bogus document. This finding was based on the information in the Department’s decision record that indicated the documents were not registered and were fraudulent.

The Tribunal was satisfied PIC 4020 should be waived in this matter due to compassionate circumstances affecting the interests of Australian citizens or permanent residents that justified the granting of the visa.

The review applicant stated that her two adult children live in Australia with their own families and she wanted to reunite with her children, but could not do so unless the visa applicant received the visa. The review applicant further stated that their lives were on hold, because they could not abandon the child. The Tribunal accepted that because the review applicant and her partner were unwilling to leave without the child, there would be ongoing separation between the review applicant and her family in Australia. The Tribunal was mindful that the review applicant and her family members are Australian citizens. The Tribunal accepted that there was a close relationship between the visa applicant and the review applicant, who had brought up the child from a young age and taken on the role of the mother.

The Tribunal remitted the application for reconsideration, with the direction that the applicant met PIC 4020.  

Read the full written decision on AustLii.

[1] PIC 4020(4) of Schedule 4 to the Migration Regulations 1994