Mbembe (Migration)

The Administrative Appeals Tribunal considered an appeal by a visa applicant, a citizen of the Democratic Republic of Congo, against the refusal of her application for a Subclass 117 (Orphan Relative) visa. The review applicant, who claimed to be the visa applicant's paternal aunt, was the sponsor for the visa application. The visa applicant had claimed to be the biological child of Mr Kashindi Kanefu and Ms Jacqueline Chuki, and that she and six siblings shared the same biological parents.

The primary legal issues before the Tribunal were whether the visa applicant met the criteria for an "orphan relative" under clause 117.211 of the Migration Regulations 1994, specifically concerning the identity of her parents and whether they were deceased. This involved assessing the credibility of the evidence provided, including birth certificates and DNA test results, and determining if the applicant had sufficiently demonstrated that she was an orphan relative.

The Tribunal noted that while a birth certificate indicated the visa applicant's parents, DNA test results confirmed probable half-siblingship with only two of the six claimed siblings. The DNA results made it unlikely that the review applicant was the aunt of the other four claimed siblings, whose applications were subsequently withdrawn. The Delegate had placed limited weight on the birth certificate due to the discrepancies revealed by the DNA testing and had also noted the absence of death certificates or other documentation to support the claim that the visa applicant's parents were deceased. Consequently, the Delegate concluded that the visa applicant had not sufficiently demonstrated she was an orphan relative, failing to meet regulation 1.14(b) and clause 117.211.