2206821 (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The review applicant sought to sponsor the visa applicant, claiming to be her aunt and an Australian relative. The central dispute revolved around whether the visa applicant met the definition of an "orphan relative" as defined in the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant was an orphan relative of an Australian relative, specifically addressing whether she had not turned 18, did not have a spouse or de facto partner, and was a relative of the review applicant. Furthermore, the Tribunal had to consider whether the visa applicant's parents were deceased, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the best interests of the applicant. The delegate had previously found the evidence of the familial relationship deficient due to issues with the birth certificate and inconclusive DNA evidence.

The Tribunal reasoned that the visa applicant met the age and marital status requirements. While acknowledging the delegate's concerns regarding the familial relationship, the Tribunal found that the visa applicant was an orphan relative of an Australian relative at the time of application and continued to be so at the time of the decision. The Tribunal noted that the delegate's decision was based on the perceived deficiency in proving the relationship and the inconclusive DNA evidence. However, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the visa applicant met the criteria under cl 117.211(a) and cl 117.221(b) of Schedule 2 to the Regulations.