1724242 (Migration)

The Administrative Appeals Tribunal considered a decision concerning two applicants for a Child (Migrant) (Class AH) visa, specifically Subclass 117 (Orphan Relative). The dispute arose when the Department of Home Affairs was not satisfied that the visa applicants were relatives of the sponsor, who claimed to be their grandmother. The applicants had initially claimed a grandmother-grandchild relationship, but after the Department offered DNA testing, they advised that the sponsor was the step-grandmother and the applicants' mother was the sponsor's adopted niece, a relationship the DNA testing was unlikely to confirm.

The primary legal issue before the Tribunal was whether the visa applicants met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. This required determining if the sponsor was an "Australian relative" and, crucially, if the sponsor was a "relative" of the visa applicants within the meaning of regulation 1.03. The Tribunal also had to consider whether the applicants continued to satisfy the criteria for an orphan relative at the time of the decision, or if they only failed to do so because they had turned 18.

The Tribunal found that the sponsor was an Australian citizen, satisfying the requirement of being an "Australian relative." However, the core of the Tribunal's reasoning focused on the definition of "relative" in regulation 1.03, which includes grandparent, grandchild, aunt, uncle, niece, nephew, or a close relative (spouse, de facto partner, child, parent, brother, or sister), with step-relationships also included. Given the applicants' revised claim that the sponsor was their step-grandmother and their mother was the sponsor's adopted niece, the Tribunal concluded that the sponsor was not a relative of the visa applicants as defined by the regulations. The Tribunal affirmed the Department's decision not to grant the visa applicants the Subclass 117 visa because the criteria were not met.