Manash (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by Selina and Isaac. The applicants sought to be recognised as orphan relatives of Mr Manash, an Australian citizen. The dispute centred on whether the applicants met the definition of "orphan relative" as defined in the Migration Regulations 1994, particularly in relation to their parentage and the whereabouts of their mother. The decision was made by Kate Millar, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether Selina and Isaac qualified as orphan relatives of Mr Manash at the time of their visa application and at the time of the decision. This required the Tribunal to determine if the applicants met the criteria set out in clause 117.211 and clause 117.221 of Schedule 2 to the Migration Regulations 1994, and the definition of "orphan relative" in regulation 1.14. Specifically, the Tribunal had to consider if the applicants had not turned 18, were not married or in a de facto relationship, were relatives of Mr Manash, and if both their parents were either dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal considered the evidence regarding the applicants' parentage and the circumstances of their mother, Mary Ghira. Mr Manash, the applicants' half-brother, stated that his mother remained in a refugee camp in Uganda after his father's death and re-partnered with Paul Juda, the applicants' father. Mr Juda died in 2003, and Mary Ghira, along with Selina and Isaac, was returned to South Sudan in 2007. Mr Manash has been supporting them since then. In 2016, the family fled an attack in South Sudan, and Selina and Isaac were separated from their mother, eventually re-entering a refugee camp in Uganda. Mr Manash stated his mother was now missing. The Tribunal was satisfied that Selina and Isaac had not turned 18 at the time of the application, based on provided documentation.

Given the findings that the applicants met certain criteria for the visa, the Tribunal remitted the applications for reconsideration by the Minister. The Tribunal directed that the first named visa applicant, Selina, met the criteria under cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.