Ajiba Oshang (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by Ajiba Oshang on behalf of the visa applicants. The dispute centred on whether the visa applicants qualified as "orphan relatives" of an Australian relative, as defined by the Migration Regulations 1994. The applicants, citizens of South Sudan residing in Khartoum, claimed their father was deceased and their mother's whereabouts were unknown.

The primary legal issues before the Tribunal were whether the visa applicants were, at the time of application and at the time of the decision, an orphan relative of an Australian relative, or would have been but for turning 18. This required determining if both parents were deceased, permanently incapacitated, or of unknown whereabouts, and if granting the visa would be in the best interests of the applicants. The Tribunal also had to consider the validity and authenticity of the submitted evidence, including a death certificate for the father and various statutory declarations and letters detailing efforts to locate the mother and care arrangements for the children.

The Tribunal's reasoning focused on the definition of an "orphan relative" and the evidence provided to satisfy those criteria. While acknowledging the difficult circumstances of civil war in South Sudan and the efforts made by the review applicant to locate the mother and provide care, the Tribunal identified concerns regarding the submitted documentation. Specifically, the Tribunal noted potential alterations to the father's death certificate and the ongoing uncertainty surrounding the mother's fate. Given these issues, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), for reconsideration, directing that the visa applicants meet the criteria specified in cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.