Malag (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), lodged on behalf of three minor applicants. The sponsor, an Australian citizen, claimed to be the maternal aunt of the applicants and that their parents were deceased. The visa application was lodged at Australia's diplomatic mission in Nairobi, Kenya, with the applicants residing in Uganda at the time.

The primary legal issue before the Tribunal was whether the visa applicants met the definition of an "orphan relative" under the Migration Regulations 1994. This required determining if each of the applicants' parents was either dead, permanently incapacitated, or of unknown whereabouts, and if there were no compelling reasons against granting the visa in the best interests of the applicants. The Tribunal also considered whether there were reasonable and compelling reasons for any lack of evidentiary material and the adequacy of migration advice provided.

The Tribunal found that while a death certificate for the applicants' mother was provided, the evidence regarding the father was mutually unsupportive and included a potentially bogus death certificate. The sponsor's evidence indicated uncertainty about the father's whereabouts, with reports of him being alive and heavily intoxicated, and later, unconfirmed reports of his death. The Tribunal noted the sponsor's limited English proficiency and her inability to obtain further documentation. Given the deficiencies in the evidence concerning the father and the potential inadequacy of migration advice, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that each of the visa applicants meets the criteria specified in cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.