Mwito (Migration)

This matter concerned applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), made by seven applicants. The review applicant, Susan Mwito, was the Australian relative sponsoring the visa applicants. The core dispute revolved around whether the visa applicants were "orphan relatives" as defined by the Migration Regulations 1994, specifically whether their parents, and in particular their father, were deceased. The Administrative Appeals Tribunal (AAT) was tasked with determining if sufficient evidence supported the claim that the father was dead.

The legal issues before the Tribunal were whether the visa applicants met the criteria for being orphan relatives under clause 117.211 of Schedule 2 to the Regulations, and whether they continued to meet the criterion under clause 117.221 at the time of the decision, considering their age. The definition of an "orphan relative" required that the applicant had not turned 18, did not have a spouse or de facto partner, was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and could not be cared for by either parent because each was dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also needed to consider if there was any compelling reason to believe that granting the visa would not be in the best interests of the applicants.

The Tribunal found that the birth dates of the seven applicants were consistent across all provided documentation and that they were all under 18 at the time of their applications. It was also satisfied that the two eldest applicants had only turned 18 due to the passage of time between the application date and the decision date. The primary difficulty arose from inconsistencies in documents relating to the father's death, including a translator's error that included the date of translation instead of the actual reporting date of births, which occurred before the father's recorded death. Despite these inconsistencies, which were exacerbated by the unavailability of original documents due to the COVID-19 pandemic, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration, directing that the first named visa applicant met the criteria under clauses 117.211 and 117.221 of Schedule 2 to the Regulations. Similarly, the Tribunal remitted the applications for the second through seventh named visa applicants for reconsideration, with the direction that they also met the criteria under clauses 117.211 and 117.221.