1706271 (Migration)

This matter concerned applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), made by two visa applicants, Ms B and Ms C. The sponsor and review applicant, Mr A, an Australian citizen, claimed the visa applicants were his nieces, being the children of his deceased brother. The dispute centred on whether the visa applicants met the definition of "orphan relatives" under the Migration Regulations 1994, specifically concerning their relationship to the sponsor and their status as orphans. The Administrative Appeals Tribunal (AAT) considered the evidence presented by the parties.

The Tribunal was required to determine whether the visa applicants were relatives of the sponsor, Mr A, and whether they met the criteria for being "orphan relatives" as defined by Regulation 1.14 of the Migration Regulations 1994. This involved assessing whether the applicants were under 18, did not have a spouse or de facto partner, were relatives of the sponsor, could not be cared for by either parent due to death, permanent incapacity, or unknown whereabouts, and whether granting the visa would be in their best interests. The Tribunal also had to consider the weight to be given to DNA testing results, which were inconclusive regarding the precise sibling relationships between the visa applicants and their claimed siblings, and the relationship between the sponsor and the visa applicants.

The Tribunal found that while the initial DNA testing results were inconclusive, other evidence strongly supported the claim that the visa applicants were the children of the review applicant's deceased brother. This evidence included the consistent testimony of the review applicant, his mother, and UNHCR registration documents, all of which indicated the children came into the care of the review applicant's mother due to civil war in South Sudan. The Tribunal accepted the review applicant as a credible witness and considered the difficult circumstances faced by the children, including their displacement and lack of documentary evidence. It concluded that the visa applicants met the criteria of being relatives of the sponsor and that their parents were either deceased or their whereabouts were unknown, and that it was in the best interests of the children to grant the visa.

Accordingly, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), for reconsideration. The Tribunal directed that the visa applicants met the criteria for being an orphan relative under clause 117.211 and 117.221 of Schedule 2 to the Migration Regulations 1994.