Sheikh (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by four applicants. The sponsor, an Australian citizen, claimed to be the paternal aunt of the visa applicants and asserted that the applicants' parents had died. The core of the dispute revolved around whether the visa applicants met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. The decision was made by Brendan Darcy, a Member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicants satisfied the criteria for being an orphan relative, specifically whether they were under 18, not in a relationship, and a relative of the Australian sponsor. Crucially, the Tribunal had to determine if the applicants' parents were deceased, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the best interests of the applicants. The Tribunal also considered the limited documentary evidence provided, including the absence of birth certificates and death records, and the sponsor's declaration that one applicant was not biologically related to the others.

The Tribunal reasoned that while the sponsor's claims regarding the deaths of the applicants' parents and their familial relationship were supported by statutory declarations, the evidence was limited. The absence of formal documentation, such as death certificates, and the sponsor's admission that one applicant was not biologically related to the others, presented challenges in definitively establishing the criteria. However, the Tribunal acknowledged that such documentation might be difficult to obtain in Somalia. Given these circumstances, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration. The Tribunal directed that the first named visa applicant met the criteria specified in cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.