1901382 (Migration)

The Administrative Appeals Tribunal reviewed decisions not to grant Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), to three applicants. The review applicant, who is an Australian relative, sought to establish that the visa applicants were her deceased brother's children and therefore orphan relatives eligible for the visa. The primary dispute centred on whether the first-named visa applicant met the criteria for an orphan relative, particularly concerning the establishment of a biological link and the status of her parents.

The Tribunal was required to determine whether the first-named visa applicant was an orphan relative of an Australian relative at the time of the visa application and at the time of the Tribunal's decision. This involved assessing whether the applicant met the definition of an orphan relative under regulation 1.14 of the Migration Regulations 1994, which includes requirements that the applicant be under 18, not have a spouse or de facto partner, be a relative of the Australian citizen, and be unable to be cared for by either parent because they are dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered whether there was a compelling reason to believe that granting the visa would not be in the best interests of the applicant.

The Tribunal found that the criteria for the grant of a Subclass 117 visa were not met. While the review applicant stated that the children's parents were deceased due to conflict, and provided some documentation regarding the children's identities and circumstances, crucial evidence, such as DNA testing to establish a biological link between the review applicant and the visa applicants, was not provided. The Tribunal noted that the first-named visa applicant had turned 18 by the time of the decision, which also impacted the assessment against the visa criteria. Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.