1935686 (Migration)

This matter concerns a review of a decision regarding a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The review applicant is the Australian relative of the visa applicant. The central dispute revolves around whether the visa applicant meets the definition of an "orphan relative" as defined by the Migration Regulations 1994. The decision was made by Maxina Martellotta, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the visa applicant qualified as an orphan relative of an Australian relative. This required assessing whether the applicant met the criteria outlined in clause 117.211 and clause 117.221 of Schedule 2 to the Regulations, which in turn necessitated an examination of the definition of "orphan relative" under regulation 1.14. Specifically, the Tribunal had to consider if the applicant had not turned 18, did not have a spouse or de facto partner, was a relative of the Australian citizen, and crucially, could not be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts.

The Tribunal found that the visa applicant met the definition of an orphan relative of an Australian relative at the time of application and continued to meet this criterion at the time of the decision, satisfying clause 117.211(a). It was established that the applicant had not turned 18 at the time of application, although this criterion was not met at the time of the decision. The Tribunal was satisfied that the applicant did not have a spouse or de facto partner, and this condition remained met. The Tribunal also accepted that the applicant was a relative of the Australian review applicant. However, the specific circumstances regarding the parents' whereabouts and capacity to care for the child were not fully detailed in the provided text, leading to the decision to remit the matter.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), to the Minister for reconsideration. The remittal was made with the direction that the visa applicant meets the criteria specified in clause 117.211 and clause 117.221 of Schedule 2 to the Regulations.