1717412 (Migration)

This matter concerned an appeal against a decision not to grant a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicant sought to establish that they were an orphan relative of an Australian resident sponsor, who claimed to be the applicant's biological aunt. The core of the dispute revolved around whether the applicant met the definition of an "orphan relative" and a "relative" of the sponsor under the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant was a "relative" of the sponsor, and whether the applicant's parents were deceased, permanently incapacitated, or of unknown whereabouts, as required by the definition of an "orphan relative." The Tribunal also had to consider whether the applicant continued to meet these criteria at the time of the decision.

The Tribunal considered the definition of "relative" and "orphan relative" under the Regulations. The sponsor claimed to be the applicant's biological aunt, and that the applicant's parents had died in floods. However, DNA testing results indicated that the applicant was "unlikely to be related" to the sponsor, although the relationship was described as "inconclusive." The Tribunal noted the lack of official records confirming the death of the applicant's parents. Given the DNA evidence and the absence of proof regarding the parents' deaths, the Tribunal found that the applicant had not established that they were a relative of the sponsor, nor that their parents were deceased or of unknown whereabouts. Consequently, the criteria for the Subclass 117 visa were not met.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.