Sibhatu (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of a visa applicant from Eritrea and the sponsor, who claimed to be the applicant's paternal aunt and an Australian citizen. The dispute concerned the applicant's eligibility for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan relative). The sponsor asserted that the applicant's parents were missing and that the applicant had been cared for by his grandmother.

The primary legal issue before the Tribunal was whether the visa applicant met the definition of an "orphan relative" as defined by the Migration Regulations 1994, specifically Regulation 1.14. This required the Tribunal to determine if the applicant was under 18 years of age, lacked a spouse or de facto partner, was a relative of the Australian sponsor, and if both parents were deceased, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider whether the applicant continued to meet these criteria at the time of the decision, or if he had turned 18.

The Tribunal found that the applicant did not meet the criteria for an orphan relative. Crucially, the applicant was over 18 years of age at the time of the application and at the time of the decision, failing Regulation 1.14(a)(i). Furthermore, the Tribunal noted inconsistencies in the applicant's previous statements regarding his father and siblings, and a lack of documentary evidence, such as death certificates, to support the claim that both parents were deceased or of unknown whereabouts. The Tribunal affirmed the delegate's decision not to grant the visa.