Mayen (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Mrs Mayen concerning the refusal to grant Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), to several applicants. The dispute centred on whether the applicants met the definition of "orphan relative" of an Australian relative, as required by the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the visa applicants satisfied the criteria for being an "orphan relative" under regulation 1.14 of the Migration Regulations 1994. This involved assessing whether the applicants were related to Mrs Mayen, an Australian relative, whether they were under 18, unmarried, and crucially, whether they could not be cared for by either parent because each parent was dead, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider if there was any compelling reason to believe that granting the visa would not be in the best interests of the applicants.

The Tribunal's reasoning focused on the evidence of the applicants' relationship to Mrs Mayen. DNA test results provided in relation to one applicant, Laat, were inconclusive regarding an aunt-nephew relationship. Further DNA tests concerning the remaining applicants also indicated it was unlikely there was an aunt-niece or nephew relationship. Mrs Mayen's explanation for the lack of clear familial evidence was that the applicants were the children of her deceased step-brother, and she suggested further DNA testing. However, the Tribunal found that the provided DNA evidence did not establish the required familial link to Mrs Mayen, which was a fundamental criterion for the Subclass 117 visa.

Consequently, the Tribunal affirmed the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas, as the criteria for the Subclass 117 visa were not met. No claims were advanced in respect of other visa subclasses within Class AH.