1920674 (Migration)

This matter concerned an application for a Subclass 117 (Orphan Relative) visa. The applicant sought review of a decision concerning their eligibility for this visa. The case was heard by Nicholas McGowan.

The primary legal issue before the court was whether the applicant met the criteria for an orphan relative as defined by the Migration Regulations 1994. Specifically, the court was required to determine if the applicant was under 18, without a spouse or de facto partner, and a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Crucially, the court had to assess whether both of the applicant's parents were either deceased, permanently incapacitated, or of unknown whereabouts, and whether there was no compelling reason to believe that granting the visa would not be in the applicant's best interests.

The court reasoned that the criteria for the grant of the visa were met in relation to the applicant's age, marital status, and relationship to an Australian relative. Furthermore, the court found that the applicant's mother had passed away and their father was permanently incapacitated, satisfying the requirement that the applicant could not be cared for by either parent. Consequently, the court remitted the applications for reconsideration by the Minister or their delegate, with a direction that the first named visa applicant met specific criteria under clauses 117.211(a) and 117.221 of Schedule 2 to the Migration Regulations 1994.