Ko (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, where the applicant niece was sponsored by her uncle, an Australian citizen. The primary dispute before the Tribunal was whether the applicant had provided sufficient evidence to establish that the sponsor was a "settled" Australian citizen and a "relative" of the applicant, as required by cl 600.232 of the Migration Regulations 1994.

The Tribunal was required to determine if the sponsor met the definition of "settled" under reg 1.03, which requires lawful residence in Australia for a reasonable period, and if the applicant was a "relative" of the sponsor as defined in reg 1.03, specifically whether she was his niece. The delegate had previously found that the applicant had failed to provide sufficient documentary evidence of their relationship.

The Tribunal considered the sponsor's immigration history, noting he arrived in Australia in 2008 on a refugee visa and had only made short trips abroad since. This satisfied the requirement of being "settled". Regarding the relationship, the Tribunal noted the definition of "relative" included nieces and nephews. Evidence from the sponsor's daughter, the applicant, and a church pastor consistently supported the claim that the applicant was the daughter of the sponsor's brother. The Tribunal also took into account country information regarding Myanmar, which indicated that displaced persons often face difficulties obtaining identity documents due to arbitrary destruction of records by the government, providing a reasonable explanation for the lack of official documentation from Myanmar.

Consequently, the Tribunal was satisfied that the applicant was a relative of the sponsor and that the sponsor met the criteria of being a settled Australian citizen. The Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria set out in cl 600.232.