1702164 (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding applications for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative) visas. The first named visa applicant and the review applicant claimed to be biological full siblings, with their mother deceased. However, DNA testing revealed they were biological half-siblings, and the first named visa applicant's father was unknown. The review applicant, an Australian citizen, was the relevant Australian relative.

The Tribunal was required to determine whether the first named visa applicant qualified as an "orphan relative" of the review applicant, an Australian citizen, at both the time of application and the time of the decision. This involved assessing whether the first named visa applicant met the criteria outlined in clause 117.211 and clause 117.221 of the Migration Regulations 1994, including the definition of an "orphan relative" under regulation 1.14, which requires the applicant to be under 18, not have a spouse or de facto partner, be a relative of an Australian citizen, and be unable to be cared for by either parent due to death, permanent incapacity, or unknown whereabouts.

The Tribunal found that the first named visa applicant met the criteria for being an orphan relative of an Australian relative at the time of application and continued to meet this criterion at the time of the decision, despite having passed her 18th birthday. This was based on the fact that her mother was deceased, her father was unknown, and she did not have a spouse or de facto partner. The Tribunal also noted that no false or misleading information had been deliberately provided. However, further investigations were deemed necessary to assess the claims of the second named visa applicant and other remaining criteria for the visas.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first named visa applicant met the criteria for a Subclass 117 (Orphan Relative) visa under clauses 117.211 and 117.221, and that the second named visa applicant met the requirements of clause 117.312.