1901709 (Migration)

This matter concerned an application for a Subclass 117 (Orphan Relative) visa. The review applicant sought to sponsor the visa applicants, who were her nieces and nephews, on the basis that their parents were deceased. The delegate of the Department of Home Affairs had not been satisfied that the visa applicants' parents were deceased. The Tribunal acknowledged the difficult subject matter and the distress expressed by the review applicant, finding her to be a credible witness whose evidence was accepted.

The primary legal issue before the Tribunal was whether the visa applicants qualified as "orphan relatives" of an Australian relative, as defined by the Migration Regulations 1994. Specifically, the Tribunal had to determine if the visa applicants were orphan relatives of an Australian relative at the time of application and at the time of the decision, and if they had not turned 18 years of age. The definition of "orphan relative" and "Australian relative" under the Regulations were central to this determination.

The Tribunal found that the review applicant, who was an Australian citizen, was the relevant Australian relative. Based on the evidence provided, including an Adoption Attestation Letter and evidence of the parents' deaths, the Tribunal accepted that the visa applicants were orphan relatives of an Australian relative at the time of application and continued to meet this criterion at the time of the decision. The Tribunal also accepted, based on documentary evidence, that the first named visa applicant had not turned 18 at the time of application, although she had turned 18 by the time of the decision.

Consequently, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration by the Minister, with the direction that the visa applicants met the criteria under cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.