2119403 (Migration)

This matter concerned applications for Child (Migrant) (Class AH) visas, Subclass 117 (Orphan Relative), before the Migration Review Tribunal. The applicants were nieces and nephews of an Australian relative, an aunt, and the core dispute revolved around whether they met the definition of "orphan relative" under the Migration Regulations 1994. The applicants claimed they could not be cared for by either parent due to death, permanent incapacity, or unknown whereabouts, a situation complicated by conditions during a civil war in their country of origin.

The Tribunal was required to determine if the visa applicants qualified as orphan relatives of an Australian relative at the time of their application and at the time of the decision. Specifically, the Tribunal had to assess whether the applicants met the criteria outlined in clause 117.211 of Schedule 2 to the Regulations, which includes not having turned 18, not having a spouse or de facto partner, and being a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Furthermore, the Tribunal had to consider regulation 1.14(b), which mandates that the applicant cannot be cared for by either parent because each is dead, permanently incapacitated, or of unknown whereabouts, and regulation 1.14(c), concerning the best interests of the applicant.

The Tribunal found that the visa applicants met the criteria for being an orphan relative of an Australian relative at the time of application and continued to meet these criteria at the time of the decision, even though they had since turned 18. This was because clause 117.221 allows for the criterion to be met if the applicant has turned 18 since the application. The Tribunal noted that death certificates were provided for one sibling and their spouse, and there was no suggestion that other siblings and their spouses were alive, particularly in light of the civil war conditions. The Tribunal also found no evidence of the applicants having a spouse or de facto partner.

Consequently, the Tribunal remitted the applications for reconsideration with the direction that the visa applicants meet the criteria for a Subclass 117 (Orphan Relative) visa as per clauses 117.211 and 117.221 of Schedule 2 to the Regulations.