• Reg. 1.14(1)(a) for the purpose of cl 117.211 of Schedule 2 to the Regulations

MIGRATION - Child (Migrant) (Class AH) visa - Subclass 117 (Orphan Relative) - niece and aunt - DNA test results show relationship likely - decision under review remitted

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.14(1)(a)(iii), Schedule 2, cls 117.111, 117.211(a)

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 January 2024 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant is a national of Ethiopia, born in November 2006. She applied for the visa on 1 July 2020. The delegate refused to grant the visa because the applicant did not meet cl 117.211 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was a relative of the sponsor. The sponsor (the review applicant) seeks review of the delegate's decision.
3. The review applicant appeared before the Tribunal on 5 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya (Ethiopian) and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

1. At the time the application was made, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.
2. The criteria for a Subclass 117 visa are set out in Part 117 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 117.211 which requires that at the time of application, the visa applicant is an orphan relative of an Australian relative (cl 117.211(a)), or is not an orphan relative only because the applicant has been adopted by an Australian relative (cl 117.211(b)).
3. 'Orphan relative' is defined in reg 1.14 of the Regulations. An 'Australian relative' is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. A 'relative' means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): reg 1.03.

1. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the visa applicant claimed she was the niece of the sponsor, who was her paternal aunt. To evidence the relationship, the visa applicant provided with the application her birth certificate and the sponsor's birth certificate and other identity documents but not the birth certificate of the visa applicant's father. The delegate noted that the visa applicant was invited to undertake DNA testing to prove the relationship and while attempts were made to arrange DNA testing, this was not completed. The delegate noted that the sponsor did not declare her brother (the visa applicant's father) in her own visa application. In the absence of the DNA test results or other probative evidence of relationship, the delegate was not satisfied the visa applicant was a relative of the sponsor and found that the visa applicant did not meet r. 1.14.

Is the visa applicant a relative of an Australian relative?

1. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The visa applicant provided with her application a birth certificate indicating she was born in 2006. The application for the visa was made in 2020. The Tribunal is satisfied the visa applicant had not turned 18 when the application was made. Accordingly reg 1.14(a)(i) was met at the time of application.

1. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The visa applicant indicated on the application form that she never had a spouse or de facto partner. There is nothing to contradict that evidence. Accordingly, reg 1.14(a)(ii) was met at the time of application.

1. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03. 'Australian permanent resident' means a non-citizen who is usually resident in Australia and who holds a permanent visa.
2. In January 2024 the review applicant provided to the Tribunal evidence that an application for DNA testing has been lodged. In February 2024 the review applicant provided to the Tribunal further evidence, including the visa applicant's birth certificate and death records for her parents, the sponsor's Australian citizenship evidence and evidence relating to financial support. At that time, the review applicant had not provided the result of the DNA test. On 2 May 2025 the review applicant informed the Tribunal that due to the requirements of the DNA Lab, the test could not be completed. Given that the correspondence from the Lab is dated 2019, it is not entirely clear to the Tribunal why the review applicant waited until a day before her Tribunal hearing to inform the Tribunal about the deficiency in the earlier process and to request the new arrangements for testing. The review applicant confirmed in oral evidence that the parties attempted to complete DNA testing but for various reasons, it could not be completed.
3. At the review applicant's request, the Tribunal facilitated the DNA testing for the review applicant and the visa applicant. On 6 August 2025 the Tribunal received advice from DNA Solutions which indicated that there was 'limited / fair support' for the proposition that there is the aunt / niece relationship between the sponsor and the visa applicant and that it was 23 times more likely that there was a full aunt - niece relationship compared to unrelated individuals. The report indicates that based on the DNA testing, there is sufficient evidence that the applicant and the sponsor are 'likely' to be related as aunt - niece compared to unrelated individuals.
4. Having regard to that report, the Tribunal is satisfied that the visa applicant is the niece of the sponsor and a relative of the sponsor. The Tribunal finds that the requirement of r. 1.14(a)(iii) is met.
5. The Tribunal has determined that the visa applicant meets r. 1.14(a). As the delegate has not undertaken the assessment of the other requirements for the grant of the visa, the Tribunal has limited its consideration to the above requirements.

1. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

1. The Tribunal sets aside the decision under review and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:
   • Reg. 1.14(a) for the purpose of cl 117.211 of Schedule 2 to the Regulations

Representative for the Applicant: Mr Emete Joesika (MARN: 0100301)