ABEBE (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicant was the nephew of an Australian relative who acted as the sponsor. The core of the dispute revolved around whether the applicant qualified as an "orphan relative" under the relevant regulations, particularly in light of evidence suggesting a lack of biological relationship and the absence of formal adoption. The decision was made by Kira Raif, Senior Member, in the Migration and Refugee Division of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the visa applicant met the criteria for an orphan relative, specifically concerning the definition of "parent" and whether the applicant's parents were deceased. A key issue was the weight to be given to DNA testing which indicated no biological relationship between the applicant and the sponsor's family, and the absence of any formal adoption process. The Tribunal also had to consider whether practical barriers prevented a formal adoption and if the death certificates of the applicant's parents had been adequately verified.

The Tribunal reasoned that while DNA testing indicated no biological relationship, the definition of "parent" in the context of migration law could encompass more than biological ties, particularly where customary adoption practices exist. It found that the death certificates of the applicant's parents had been verified. Crucially, the Tribunal accepted that there were practical barriers to undertaking a formal adoption in the applicant's country of origin, making it not reasonably practicable to do so. Consequently, the Tribunal remitted the application to the Minister for reconsideration, directing that the visa applicant met the criteria under cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.