Lual (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), by the visa applicants. The claimed Australian relative was Ms Nyawal Dak Lual. The core of the dispute revolved around whether the visa applicants were indeed an orphan relative of Ms Lual, as required by the Migration Regulations 1994. The decision was made by M. Edgoose of the Tribunal.

The Tribunal was required to determine whether the visa applicants met the criteria for an orphan relative of an Australian relative at the time of application and at the time of the decision. Specifically, the Tribunal had to consider whether the visa applicants were a "relative" of Ms Lual, an "Australian relative" as defined, and whether they met the definition of an "orphan relative" under regulation 1.14 of the Regulations. The Tribunal also had to consider the impact of adoption, although this was not the primary issue.

The Tribunal's reasoning focused on the definition of "relative" and the evidence presented to establish the claimed relationship. DNA testing was undertaken, and the report indicated it was unlikely that the visa applicants and Ms Lual were related as aunt and niece. Despite Ms Lual's assertion that she believed the visa applicants were her brother's children and still considered them related, the delegate was not satisfied that the visa applicants met the requirements of regulation 1.14(a)(iii) due to the DNA findings. The Tribunal affirmed the delegate's decision, finding that the visa applicants were not an orphan relative of an Australian relative.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas, as the criteria for the visa were not met.