Mahat (Migration)

This matter concerned a review of a decision not to grant Subclass 117 (Orphan Relative) visas to certain visa applicants. The review applicant, who identified as the half-brother of the visa applicants, sought to establish himself as the relevant Australian relative. The Administrative Appeals Tribunal was tasked with determining whether the visa applicants met the criteria for an orphan relative visa.

The primary legal issue before the Tribunal was whether the visa applicants were "orphan relatives" of an "Australian relative" as defined by the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the review applicant was a "relative" of the visa applicants and whether the visa applicants met the other requirements of being an orphan. The Tribunal also considered whether the visa applicants continued to meet these criteria at the time of the decision.

The Tribunal found that the review applicant had failed to provide sufficient evidence to establish that he was a relative of the visa applicants. While the review applicant claimed to be the half-brother, he presented no documentary evidence, relying solely on oral testimony. The Tribunal gave limited weight to this oral evidence, noting that the review applicant had not declared other siblings upon his arrival in Australia and had had ample time to obtain supporting documentation or arrange for DNA testing. Consequently, the Tribunal was not satisfied that the visa applicants were relatives of an Australian citizen, permanent resident, or eligible New Zealand citizen, and therefore the criteria for the Subclass 117 visa were not met.

The Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.