2319047 (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a Child (Migrant) (Class AH) visa, specifically the 117 (Orphan Relative) subclass. The review applicant, who is the brother of the visa applicant, sought to have the decision not to grant the visa set aside. The central dispute revolved around whether the visa applicant met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant was an orphan relative of an Australian relative at the time of application and at the time of the decision, considering the criteria outlined in clause 117.211 and 117.221 of the Migration Regulations. Specifically, the Tribunal had to assess whether the visa applicant's parents were either dead, permanently incapacitated, or of unknown whereabouts, thereby preventing them from caring for the visa applicant. The Tribunal also considered whether granting the visa would be in the best interests of the visa applicant.

The Tribunal noted that DNA testing indicated a strong biological relationship between the review applicant and the visa applicant, establishing them as brothers and thus "close relatives" as defined by regulation 1.03. However, the Tribunal was not satisfied that the medical reports provided constituted sufficient evidence that the visa applicant's father was permanently incapacitated. Furthermore, the Tribunal concluded that it was not satisfied that both of the visa applicant's parents were permanently incapacitated from providing care at the time of the application, nor were their whereabouts unknown. Consequently, the Tribunal found that the visa applicant did not meet the definition of an orphan relative under regulation 1.14(b).

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, as the criteria for the Subclass 117 visa were not met. The Tribunal also noted that no claims had been advanced regarding other child visa subclasses within Class AH.