1720832 (Migration)

This matter concerned an application for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), by four visa applicants. The review applicant, who was the maternal aunt of the visa applicants and an Australian citizen, sought to sponsor them. The core dispute revolved around whether the visa applicants met the definition of an "orphan relative" as defined in the Migration Regulations 1994. The decision was made by Margie Bourke, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the visa applicants satisfied the criteria for being an "orphan relative" under regulation 1.14 of the Migration Regulations 1994, and consequently, if they met the requirements of clause 117.211 for the Subclass 117 visa. This involved assessing whether the applicants were under 18, did not have a spouse or de facto partner, were a relative of an Australian citizen, and crucially, whether they could not be cared for by either parent because each parent was dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal found that while the visa applicants met the age and marital status requirements of regulation 1.14(a), and that the review applicant was their maternal aunt and an Australian citizen, they failed to satisfy the critical criterion under regulation 1.14(b). The evidence presented indicated that the father had passed away, but the mother was not deceased or permanently incapacitated at the time of the visa application. Although the mother died after the visa application was lodged, this event did not retroactively satisfy the requirement that both parents were deceased or permanently incapacitated at the time of application. Consequently, the Tribunal concluded that the applicants were not orphan relatives of an Australian relative at the time of application, and therefore clause 117.211(a) was not met.

The Tribunal affirmed the decisions not to grant the visa applicants the Child (Migrant) (Class AH) visas, as the criteria for the Subclass 117 visa were not met. No claims were advanced in respect of any other visa subclasses within Class AH.