1617259 (Migration)

This matter concerned an application for review of a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The visa applicant claimed to be the niece of the review applicant, who was an Australian permanent resident and therefore an "Australian relative" for the purposes of the visa subclass. The core of the dispute revolved around whether the visa applicant met the definition of an "orphan relative" as defined in the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant was an orphan relative of an Australian relative at the time of application, as stipulated by clause 117.211 of the Migration Regulations. This involved assessing whether the visa applicant was a relative of the Australian relative and whether both of her parents were deceased, permanently incapacitated, or of unknown whereabouts, as per regulation 1.14. A key issue was the credibility of the evidence presented, particularly concerning the identity and death of the visa applicant's father.

The Tribunal affirmed the delegate's decision, finding that the criteria for the visa were not met. While accepting that the review applicant was considered the visa applicant's aunt, the Tribunal was not satisfied on the available evidence that the visa applicant was an orphan relative. Specifically, there were discrepancies in the documentation presented regarding the identity of the visa applicant's father, with his name appearing differently on a death certificate and in a statutory declaration. This, along with insufficient evidence of the father's death, led the Tribunal to conclude that the applicant had not established that she could not be cared for by both parents due to their death. Consequently, the Tribunal affirmed the decision not to grant the visa.