Mbembe (Migration)

The Administrative Appeals Tribunal considered an appeal by a visa applicant, a ten-year-old child from the Democratic Republic of the Congo, against a decision to refuse her application for a Subclass 117 (Orphan Relative) visa. The review applicant, claiming to be the visa applicant's paternal aunt, sponsored the application. The visa applicant asserted she was the biological child of Mr Kashindi Kanefu and Ms Jacqueline Chuki, and that she and six siblings shared these parents.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for an "orphan relative" under clause 117.211 of the Migration Regulations 1994, specifically whether she was the biological child of deceased parents. This required the Tribunal to assess the credibility of the evidence presented regarding the identity of her parents and their alleged deaths, particularly in light of conflicting information and DNA test results.

The Tribunal noted that while a birth certificate purported to name the visa applicant's parents, DNA test results confirmed a probable half-sibling relationship with one claimed sibling and a full sibling relationship with another, but found it unlikely the review applicant was the aunt of four other claimed siblings. The delegate had placed limited weight on the birth certificate due to these discrepancies and noted the absence of death certificates or other evidence to support the claim that the parents were deceased. Consequently, the delegate had concerns that one or both parents might still be alive, leading to the conclusion that the visa applicant had not sufficiently demonstrated she was an orphan relative, thus failing to meet the requirements of regulation 1.14(b) and clause 117.211.