Salih (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The review applicant, Ms Jamila Omer Saleh, sought to establish that the visa applicants, her twin siblings, were orphans and therefore eligible for the visa. The primary dispute revolved around whether the visa applicants met the definition of "orphan relative" under the relevant migration regulations, particularly concerning the status of their parents.

The legal issues before the Tribunal were whether the visa applicants were "orphan relatives" of an Australian relative at the time of application and at the time of decision, as required by clause 117.211 of Schedule 2 to the Migration Regulations 1994. This involved determining whether the visa applicants' parents were deceased or their whereabouts unknown since 2013, and whether Ms Jamila Omer Saleh qualified as an "Australian relative" and a "close relative" as defined in the regulations.

The Tribunal considered evidence including a UNHCR report indicating the family unit and the visa applicants' inclusion, and a letter from a refugee camp stating the father departed for Libya in 2013 and had not been heard from since. Crucially, the Tribunal accepted the oral evidence of Ms Jamila Omer Saleh, finding her to be a candid and credible witness. She testified about her close relationship with her father, regular phone contact, and her belief that he would have contacted her if he were still alive. Based on this evidence, the Tribunal concluded that the father's whereabouts were unknown since 2013 and he was accepted as dead, and that the mother's death was also known and accepted.

The Tribunal remitted the application for reconsideration with a direction that the visa applicant met the criteria for a Subclass 117 (Orphan Relative) visa, specifically clause 117.211 of Schedule 2 to the Regulations.