Abdosh (Migration)

This matter concerned the review of decisions not to grant Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative), to two applicants. The review applicant, who was an Australian citizen, claimed to be the sister of the visa applicants. The delegate of the Minister had refused the visas, finding that the first named visa applicant did not meet the requirements of regulation 1.14(a)(i) of the Migration Regulations 1994, specifically that she had not turned 18 years of age at the time of application.

The Tribunal was required to determine whether the visa applicants qualified as "orphan relatives" of an Australian relative under clause 117.211 of the Migration Regulations 1994. This involved assessing whether the applicants met the definition of an orphan relative as set out in regulation 1.14, which includes requirements that the applicant be under 18, not have a spouse or de facto partner, and be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Crucially, the Tribunal also had to consider whether the applicants could not be cared for by either parent because both were deceased, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the best interests of the applicants.

The Tribunal found that the review applicant, as the claimed sister of the visa applicants, constituted the relevant Australian relative. While no historical evidence of the sister relationship was provided, the Tribunal accepted the claim at face value, noting that the review applicant had listed both individuals as her sisters in a previous visa application. The Tribunal also accepted that the first named visa applicant had not turned 18 at the time of application, based on her declared date of birth. The Tribunal affirmed the decisions not to grant the visas, indicating that the applicants did not meet the criteria for an orphan relative visa.