Tribunal: Member Kate Millar

An application for two Orphan Relative visas was refused by a delegate of the Minister for Immigration and Border Protection. On 1 February 2018, the Administrative Appeals Tribunal remitted the decision for reconsideration.

The review applicant was a citizen of Australia who was seeking for his half-brother and half-sister, citizens of South Sudan, to live with him in Australia. It was claimed the father of the visa applicants died in a refugee camp and that their mother was unable to care for them. At the time the delegate made the decision it was claimed the mother was incapacitated due to ill health, but the Tribunal was told she had since gone missing after the family fled South Sudan to Uganda.

The criteria for an Orphan Relative visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (the Regulations). It provides that the applicants must be orphan relatives of an Australian relative. The issue the Tribunal had to consider was whether at the time of the visa application, and the time of the Tribunal’s decision being made, the two visa applicants were orphan relatives of the review applicant.

The review applicant is an Australian citizen, and DNA tests supported that he is the half-brother of the two visa applicants. The Tribunal went on to consider the more difficult matter of whether or not the two visa applicants were in fact orphans. The applicable law, Regulation 1.14(b) of the Regulations, requires that the visa applicants cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. The Tribunal was satisfied that at the time of its decision, the mother was missing and therefore of unknown whereabouts. The Tribunal was still required to determine whether or not at the time of the application the two applicants could be cared for by their mother because of her ‘permanent incapacitation’.

The Tribunal considered the mother’s ability to provide care, and the type of care the visa applicants required at the time of the application, in the context of the country and culture in which they were living. The UN Security Council May 2014 forecast stated that at that time South Sudan remained mired in civil war and the killing of many civilians was reported. It stated that food insecurity had reached crisis proportions in South Sudan.

The Tribunal concluded that in those circumstances the care that the two visa applicants required in terms of accessing food and remaining safe, required from their mother an ability to access food and water and to take action if their safety was threatened. Based on the accounts of the review and visa applicants regarding the status of the mother’s health, in addition to a doctor’s letter from the local hospital attesting to her health problems, the Tribunal was satisfied that she was unable to perform these tasks.

The Tribunal remitted the decision for reconsideration, with the direction that the applicants met the criteria for an Orphan Relative visa.

Read the full written decision on Austlii.