Gebreil (Migration)

This matter concerned an application for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), by two twin siblings. The applicants claimed that both their parents were deceased. The review applicant, who was the uncle of the visa applicants and an Australian citizen, sponsored their application. The Administrative Appeals Tribunal (AAT) was required to determine whether the visa applicants met the definition of an "orphan relative" as defined in regulation 1.14 of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the visa applicants satisfied regulation 1.14(b), which requires that an applicant cannot be cared for by either parent because each parent is dead, permanently incapacitated, or their whereabouts are unknown. The Tribunal also considered the requirements of clause 117.211, which mandates that the visa applicant be an orphan relative of an Australian relative at the time of application and continue to satisfy this criterion at the time of decision, unless they have turned 18.

The Tribunal found that while the DNA evidence confirmed the review applicant was the uncle and the visa applicants were siblings, there was insufficient reliable evidence to establish that both parents were deceased. Specifically, the Tribunal noted inconsistencies in the provided documentation, including a mother being listed on school enrolment records after the date on a death certificate, and the absence of original, untranslated documents. The Tribunal concluded that it was not satisfied that the mother was deceased, and therefore the criterion under regulation 1.14(b) was not met. Consequently, the Tribunal affirmed the decision not to grant the Child (Migrant) (Class AH) visas.