Mlobane (Migration)

This matter concerned an appeal by Mrs Sikhumbulekile Mlobane against a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), for her niece. The primary dispute revolved around the relationship between the applicant and the sponsor, and whether the applicant qualified as an "orphan relative" under the Migration Regulations 1994. The Tribunal was required to determine the correct date of application and whether the applicant met the criteria for an orphan relative at that time and at the time of the decision.

The Tribunal considered whether the visa applicant was an orphan relative of an Australian relative, as defined by clause 117.211 of the Regulations. This required the applicant to be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, be under 18, not have a spouse or de facto partner, and be unable to be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also had to consider whether there was any compelling reason against granting the visa in the applicant's best interests.

The Tribunal found that the application was lodged on 29 October 2015, based on a fee payment receipt, and not at a later date as initially determined by the delegate. However, the Tribunal concluded that the applicant did not meet the definition of an orphan relative. Specifically, the Tribunal noted that the sponsor, Mrs Mlobane, had not listed the applicant's mother as a sibling on a previous visa application, creating inconsistent evidence. Furthermore, DNA testing was unable to definitively establish the required familial relationship. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.