Andargi (Migration)

This matter concerned an application for review of a decision regarding a Subclass 117 (Orphan Relative) visa. The review applicant claimed to be the sibling of the visa applicants, who were seeking the visa in relation to an Australian relative. The Tribunal was required to consider whether the visa applicants met the criteria for being an orphan relative of an Australian relative.

The primary legal issues before the Tribunal were whether the visa applicants were an "orphan relative" as defined by the Migration Regulations 1994, specifically whether they were a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and whether they could not be cared for by either parent because each parent was deceased, permanently incapacitated, or of unknown whereabouts. The Tribunal also considered whether the visa applicants continued to meet these criteria at the time of the decision.

The Tribunal found that the review applicant was indeed the sibling of the visa applicants, based on substantial evidence submitted and the willingness of the parties to undergo DNA testing, rendering the testing itself unnecessary. The Tribunal was satisfied that the visa applicants met the definition of an "orphan relative" under regulation 1.14(a)(iii) and that they could not be cared for by either parent, as required by regulation 1.14(b). The Tribunal applied the definition of "permanent incapacity" as per *Nguyen v MIMA* (1998) 158 ALR 639, which refers to an indefinite or non-temporary impairment of a parent's ability to care for their child.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first named visa applicant met the criteria under cl 117.211(a) and cl 117.221 of Schedule 2 to the Regulations.