2217826 (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), brought by a maternal aunt on behalf of the visa applicant. The dispute centred on whether the visa applicant met the definition of an "orphan relative" under the Migration Regulations 1994. The decision was made by Member Maxina Martellotta of the Tribunal.

The primary legal issue before the Tribunal was to determine if the visa applicant satisfied the criteria for being an orphan relative, specifically whether the applicant could not be cared for by either parent because each parent was deceased, permanently incapacitated, or of unknown whereabouts. The Tribunal also had to consider whether the applicant met the requirements of being an "orphan relative" of an Australian relative at the time of application and at the time of the decision, and whether the applicant had not turned 18 and did not have a spouse or de facto partner.

The Tribunal reasoned that the visa applicant, whose mother was deceased and whose father had been missing since 2003, met the definition of an orphan relative. The Tribunal was satisfied that the applicant had not turned 18 at the time of application and continued to meet this criterion at the time of the decision, even though the applicant had since turned 18, as per clause 117.221(b). Furthermore, the Tribunal found that the applicant did not have a spouse or de facto partner, a fact supported by the evidence provided. The Tribunal concluded that the applicant was an orphan relative of an Australian relative at both relevant times.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The Tribunal directed that the visa applicant be considered to meet the criteria under clause 117.211 and clause 117.221 of Schedule 2 to the Regulations.