Atuong Tok (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), brought before the Administrative Appeals Tribunal by a review applicant on behalf of two visa applicants. The core dispute revolved around whether the visa applicants qualified as orphan relatives of an Australian relative, specifically the review applicant, who claimed to be their uncle. The visa applicants, citizens of South Sudan, were residing in a refugee camp in Uganda, and their parents were stated to have died in 2006 and 2007.

The Tribunal was required to determine whether the visa applicants met the criteria for an orphan relative visa under clause 117.211 and clause 117.221 of the Migration Regulations 1994. Specifically, the Tribunal needed to ascertain if the visa applicants were indeed orphan relatives of an Australian relative at the time of application and at the time of decision, considering the definition of an "orphan relative" which includes being under 18, not having a spouse or de facto partner, being a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and being unable to be cared for by either parent due to death, permanent incapacity, or unknown whereabouts. The Tribunal also had to consider whether there was any compelling reason to believe that granting the visa would not be in the best interests of the visa applicants.

The Tribunal reasoned that while DNA tests were inconclusive, the review applicant had provided consistent and credible testimony. The Tribunal placed little weight on the provided death certificates due to the high prevalence of fraudulent documentation in South Sudan. However, it was persuaded that the visa applicants could not be cared for by their parents due to their parents' death or unknown whereabouts, supported by consistent information provided over time, the inclusion of the applicants in an earlier visa application based on their parents being missing, supporting affidavits, and the inability of the Red Cross tracing service to locate the parents. The Tribunal applied the common law presumption of death, noting that the parents had been missing for over seven years, and found that this presumption, along with the inquiries made, satisfied the criterion that the parents were of unknown whereabouts or dead. The Tribunal also found no compelling reason to believe that granting the visa would not be in the best interests of the applicants.

Consequently, the Tribunal found that the visa applicants met the criteria under clause 117.211 and clause 117.221, with the latter being met because the visa applicants had turned 18, meaning they no longer satisfied clause 117.211 only because they had passed that age. The Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration by the Minister, with the direction that the applicants met the specified criteria.