2308179 (Migration)

This matter concerned an appeal before the Migration Tribunal regarding the refusal of a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The visa applicants claimed to be the orphan relatives of an Australian relative, with their deceased parents identified as [Father A] and [Mother A]. The primary dispute revolved around the applicants' ability to satisfy the identity requirements stipulated by Public Interest Criterion (PIC) 4020(2A) and the definition of an orphan relative under regulation 1.14 of the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicants met the requirements of PIC 4020(2A), which mandates that an applicant satisfy the Minister (or in this case, the Tribunal) as to their identity. This criterion was central to the Department's refusal of the visa. Additionally, the Tribunal had to assess whether the applicants qualified as orphan relatives of an Australian relative at the time of their application, as required by clause 117.211 of the Migration Regulations.

The Tribunal's reasoning focused on the lack of official documentation, such as birth certificates, to substantiate the applicants' claimed parentage and familial relationships. While the applicants provided a school identification card, this was deemed insufficient. Crucially, DNA testing was conducted to establish a biological link between one of the visa applicants and the claimed maternal aunt. The DNA report indicated a statistically unlikely relationship between the aunt and nephew, leading the Tribunal to conclude that the applicant was not the biological son of the claimed father, [Father A]. Based on these findings, the Tribunal was not satisfied that the applicants met the identity requirements of PIC 4020(2A) nor that they were orphan relatives as defined by the regulations.

Consequently, the Tribunal affirmed the decision of the Department not to grant the Child (Migrant) (Class AH) visa to the applicants.