Kalenda (Migration)

This matter concerned a review of a decision to refuse a Subclass 117 (Orphan Relative) visa. The visa applicant claimed to be the nephew of the review applicant, an Australian citizen. The Tribunal considered evidence and submissions relating to both the visa applicant and his sister, who had a related visa application.

The primary legal issue before the Tribunal was whether the visa applicant satisfied the criteria for an orphan relative visa, specifically clause 117.211 of Schedule 2 of the Migration Regulations 1994. This required the visa applicant to be an orphan relative of an Australian relative, or not an orphan relative only because they had been adopted by an Australian relative. The definition of "orphan relative" under regulation 1.14 of the Regulations was central to this determination.

The Tribunal found that the evidence concerning the visa applicant's relationship to his alleged parents was conflicting, and crucially, the Tribunal could not be satisfied that the visa applicant's parents were deceased. As the applicant had not sufficiently demonstrated that he was an orphan relative, the Tribunal affirmed the decision under review.