Roble (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), brought before the Tribunal by Mr Yahya Hussein Roble, an Australian citizen, who was the brother of the visa applicants. The central dispute revolved around whether the visa applicants qualified as "orphan relatives" of Mr Roble, as defined by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicants met the criteria for being an orphan relative of an Australian relative at the time of their application and at the time of the decision. Specifically, this involved assessing whether they had not turned 18, did not have a spouse or de facto partner, were a relative of an Australian citizen, could not be cared for by either parent because both were deceased, and whether granting the visa would be in their best interests. The Tribunal also had to consider the weight to be given to documentary evidence, such as birth certificates, in the context of potential document fraud in Somalia, while also acknowledging the difficulties in obtaining such documents legitimately in that country.

The Tribunal reasoned that while Somali birth certificates are treated with some caution due to the prevalence of document fraud, they must also be considered in light of the challenges of obtaining legitimate documentation in an underdeveloped and conflict-affected nation. The Tribunal found that the visa applicants' parents had died in August 2008, a fact supported by evidence and previously accepted by the department in a related matter. Consequently, the Tribunal was satisfied that the visa applicants could not be cared for by either parent and that granting the visa would be in their best interests, given the hardship in Somalia and the care offered by their brother.

Accordingly, the Tribunal concluded that the visa applicants met the criteria under cl 117.211 and cl 117.221 of Schedule 2 to the Regulations. The applications were remitted to the Minister for reconsideration, with the direction that these specific criteria had been met.