2006920 (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by a citizen of Mauritius. The applicant, who was over 18 at the time of the review but under 18 when the application was lodged, sought to migrate to Australia to live with her aunt, an Australian citizen. The applicant's mother had died, and her father, who lived in Mauritius, was described as an alcoholic suffering from dementia and other ailments, rendering him unable to care for her.

The primary legal issue before the Tribunal was whether the applicant qualified as an "orphan relative" under the Migration Regulations 1994. This required determining if the applicant could not be cared for by either parent due to their death or permanent incapacity, and if she was a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. The Tribunal also had to consider the criteria relating to the applicant's age and whether she had a spouse or de facto partner at the time of application and decision, as well as the best interests of the applicant.

The Tribunal found that the applicant's aunt, being the sister of her deceased mother, was the relevant Australian relative. It was satisfied that the applicant was an orphan relative of an Australian relative at the time of application and continued to meet this criterion at the time of the decision, notwithstanding her having turned 18. The Tribunal also noted that the applicant had not turned 18 at the time of application, satisfying that limb of the definition of an orphan relative.

Given these findings, the Tribunal remitted the application to the Minister for reconsideration. The Tribunal directed that the applicant met the criteria under cl 117.211 and cl 117.221 of Schedule 2 to the Regulations, leaving the remaining criteria for the visa to be assessed.