2200197 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision related to a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicants for the visa were two individuals, Mr. A and Ms. B, who sought to migrate to Australia. The review applicant, Ms. F, is the paternal aunt of Mr. A and Ms. B, and thus the Australian relative in this context.

The primary legal issue before the Tribunal was whether the visa applicants qualified as "orphan relatives" of Ms. F, an Australian citizen, under the Migration Regulations 1994. This required determining if the applicants' biological parents had died, if they had been in the care of their parents, and if they met the age requirements, considering the definition of "orphan relative" and "relative" as provided in the Regulations. The Tribunal also had to consider the impact of the applicants turning 18 on their eligibility.

The Tribunal considered evidence including death certificates confirming the passing of the applicants' biological parents in August 2014 due to the Ebola virus. Ms. F provided evidence of her relationship to the applicants, establishing herself as their paternal aunt, and detailed her ongoing financial support and care for them since their parents' deaths. The Tribunal noted that the applicants had been living with their parents until their deaths and that Ms. F had commenced providing care and support after learning of their difficult circumstances. The Tribunal found that the applicants had not been in parental care at the time of the decision due to their parents' deaths and that the sibling relationship between the applicants had been proven.

The Tribunal concluded that the matters should be remitted for reconsideration. This indicates that while the core elements of the claim were supported by evidence, further assessment or clarification was required before a final decision on the visa could be made.