2207208 (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The applicant sought this visa as the orphan relative of an Australian citizen. The core of the dispute revolved around whether the applicant met the criteria for being an orphan relative, particularly concerning the death of her parents and the financial support provided by her Australian relative.

The Tribunal was required to determine whether the applicant was an orphan as defined by the Migration Regulations, specifically whether her parents were deceased and if she was in the financial care of her Australian sponsor. The Tribunal also had to consider the impact of the war in Ethiopia on the availability of evidence, the communication with the visa applicant, and whether DNA testing was necessary to establish the relationship. Crucially, the Tribunal had to assess whether the decision made was in the best interests of the child, as mandated by migration law.

In its reasoning, the Tribunal acknowledged the difficulties in obtaining conclusive evidence, such as death certificates, due to the conflict in Ethiopia. It found that the evidence presented, including statutory declarations and communication records, was insufficient to definitively establish the death of the applicant's parents and her reliance on her Australian sponsor for financial support. The Tribunal also noted that the applicant's sponsor had not adequately demonstrated their capacity to provide the necessary support. Consequently, the Tribunal concluded that the original decision to refuse the visa was not affected by an error of law and that the matter should be remitted to the AAT for reconsideration.