Deng (Migration)

The Administrative Appeals Tribunal considered the case of Ms Nyatot Pom Deng, who sought to have decisions not to grant Child (Migrant) (Class AH) visas to certain visa applicants affirmed. The core dispute concerned whether the visa applicants qualified as "orphan relatives" of Ms Deng, an Australian relative, under the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicants met the criteria for an orphan relative as defined in regulation 1.14 of the Migration Regulations 1994, specifically whether they were a relative of an Australian relative, had not turned 18, did not have a spouse or de facto partner, could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts, and whether granting the visa would be in the applicants' best interests. The Tribunal also had to consider whether these criteria were met at the time of application and continued to be met at the time of the decision.

The Tribunal found that while the visa applicants met the age and marital status requirements, there was no probative evidence to establish the claimed sibling relationship between the visa applicants and the review applicant, Ms Deng. The Tribunal noted that DNA testing results were not provided or were insufficient to satisfy this crucial element of the definition of a "relative" under regulation 1.14(a)(iii). Consequently, the Tribunal concluded that the visa applicants were not orphan relatives of an Australian relative at the time of application or at the time of the decision.

As the criteria for the grant of a Subclass 117 visa were not met, the Tribunal affirmed the decisions not to grant the visa applicants the Child (Migrant) (Class AH) visas.