1718238 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 117 (Orphan Relative) visa made by Ms A, who claimed to be the niece of Mr B, an Australian citizen. The dispute centred on whether Ms A met the criteria for an orphan relative, specifically whether she was related to Mr B and whether both her parents were deceased, permanently incapacitated, or of unknown whereabouts.

The Tribunal was required to determine if Ms A was an orphan relative of Mr B, as defined by the Migration Regulations 1994. This involved assessing whether she was related to Mr B, had not turned 18 at the time of application and decision, was unmarried, and could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The definition of an "Australian relative" included an uncle who was an Australian citizen, and "relative" included an uncle.

The Tribunal noted inconsistencies in Mr B's account of his family's fate, particularly regarding the survival of one brother, which contrasted with a UNHCR registration form stating his entire family was killed. However, the Tribunal found that positive DNA test results provided support for the claimed biological relationship between Mr B and Ms A. Despite some discrepancies in the evidence regarding the parents' status, the Tribunal concluded that the matter should be remitted for reconsideration, indicating that the existing evidence was not sufficient to make a final decision on the visa application.