Fofana (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically Subclass 117 (Orphan relative), before the Tribunal. The review applicant sought to establish that the visa applicant, her niece, was an orphan relative of an Australian relative. The core of the dispute revolved around whether the visa applicant met the definition of an "orphan relative" of an "Australian relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine whether the visa applicant was a relative of the review applicant within the meaning of the Migration Act and Regulations. Specifically, it needed to assess if the visa applicant satisfied the criteria under clause 117.211, which requires the applicant to be an orphan relative of an Australian relative, or not an orphan relative only because they have been adopted by an Australian relative. The definition of "orphan relative" and "Australian relative" under the Regulations, as well as the definition of "relative" itself, were central to this determination.

The Tribunal considered evidence provided by the review applicant, including a DNA test, financial transfers, and a statutory declaration, alongside information from previous visa applications. The review applicant initially claimed to be the aunt of the visa applicant. However, discrepancies in the names of the visa applicant's parents on different documents and the review applicant's failure to declare the visa applicant's parents as siblings on prior applications raised concerns. Ultimately, the review applicant admitted that the visa applicant was not related to her but to her sister, Aisha, who had arrived in Australia earlier. Based on this admission and the lack of established familial connection, the Tribunal found that the visa applicant was not an orphan relative of an Australian relative at the time of application or at the time of the decision.

Consequently, 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.