2200040 (MIGRATION)

The Administrative Appeals Tribunal considered a Child (Migrant) (Class AH) visa application, Subclass 117 (Orphan Relative), made by a young person and reviewed a refusal to grant the visa. The review applicant, who is the paternal uncle of the visa applicant and his sibling, sought to have the visa granted. The visa applicant’s parents died when he was young, and he and his sibling were subsequently cared for and formally adopted by the review applicant and his wife. The application was lodged shortly before the visa applicant turned 18.

The primary legal issue before the Tribunal was whether the visa applicant met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994. This required determining if the visa applicant was a relative of an Australian relative, if both parents were deceased, permanently incapacitated, or of unknown whereabouts, and if granting the visa would be in the best interests of the visa applicant. The Tribunal also considered whether the visa applicant continued to satisfy these criteria, or did not do so only because he had turned 18, as per clause 117.221.

The Tribunal reasoned that while the visa applicant had refused to undergo a DNA test for personal reasons, this refusal was to be considered alongside other compelling evidence. The evidence presented included documentation and declarations from family members, friends, and a community leader, which consistently and compellingly supported the visa applicant's claim of being an orphan relative. The Tribunal found that the circumstances demonstrated that the visa applicant could not be cared for by either parent and that there was no compelling reason to believe that granting the visa would not be in his best interests.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister. The Tribunal directed that the visa applicant be considered to meet the criteria under clause 117.211 and clause 117.221 of Schedule 2 to the Regulations.