Abdullah Alinur (Migration)

This matter concerned an appeal by the review applicant against the decision of the Tribunal to affirm the refusal of a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa, for the visa applicant. The visa applicant was living with the neighbour’s family, and the core of the dispute revolved around whether the visa applicant met the definition of an "orphan relative" under the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant was an "orphan relative" of an Australian relative at the time of application and at the time of the decision, as required by clause 117.211 of the Migration Regulations. This involved assessing whether the visa applicant could be cared for by either parent, as defined by regulation 1.14(b), which requires that each parent be dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered the definition of an "Australian relative" and "relative" as set out in the Regulations.

The Tribunal's reasoning focused on the definition of an orphan relative and the evidence presented regarding the visa applicant's parents. It noted inconsistencies between the statements made by the review applicant and the visa applicant concerning the father's health and status, particularly in light of DNA testing that established a biological sibling relationship between the review applicant and the visa applicant, rather than the half-sibling relationship initially suggested. The Tribunal found that the claims regarding the father's death or permanent incapacity were not sufficiently substantiated, with conflicting accounts provided about his condition and passing. Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 117 visa were not met.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.