1603737 (Migration)

This matter concerned applications for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by [Ms A] and [Ms B] in relation to an Australian relative. The primary dispute revolved around whether the applicants met the criteria for being an orphan relative of an Australian relative at the time of their application, and whether they continued to satisfy these criteria, or only failed to do so because they had turned 18. The Tribunal was required to consider the validity of a non-disclosure certificate issued by the Department, which sought to protect certain information on the basis of public interest immunity.

The legal issues before the Tribunal included whether [Ms A] and [Ms C] were orphan relatives of an Australian relative at the time of their visa applications on 9 April 2014, and whether they continued to satisfy the relevant criteria at the time of the decision, or only failed to do so due to reaching the age of 18. The Tribunal also had to determine the validity of a non-disclosure certificate and its impact on the evidence. Further, the Tribunal needed to assess the credibility of evidence regarding the applicants' dates of birth and their familial relationship to the sponsor, considering discrepancies and explanations provided.

The Tribunal found that the non-disclosure certificate was invalid as it lacked sufficient reasons for non-disclosure on public interest grounds, referencing the principles in *MZAFZ v Minister for Immigration and Border Protection* [2016] FCA 1081. Regarding [Ms A]'s claim, the Tribunal was satisfied that she was an orphan relative at the time of application and continued to meet the criteria at the time of the decision, only failing due to having turned 18. This conclusion was reached after considering conflicting evidence regarding her date of birth, ultimately accepting her evidence as more reliable and noting that a witness's memory impairment due to trauma and pregnancy could explain inconsistencies. The Tribunal also found plausible explanations for discrepancies concerning the relationship between [Ms A] and the sponsor, [Ms D], concluding that they were indeed sisters.

Consequently, the Tribunal remitted the matters concerning [Ms A] and [Ms B] for reconsideration. However, the decision text indicates that the review of [Ms C]'s application was affirmed, suggesting that [Ms C] did not meet the required criteria.