Adem (Migration)

This matter concerned an appeal to the Tribunal regarding applications for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative) visas. The applicants sought to establish that they were orphan relatives of an Australian permanent resident, who was their sister. The core of the dispute revolved around whether the applicants met the definition of "orphan relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicants satisfied the criteria for being an orphan relative of an Australian relative at the time of their application and at the time of the decision. This involved assessing whether the applicants had not turned 18, did not have a spouse or de facto partner, and were a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Crucially, the Tribunal also had to consider whether each of the applicants' parents was either dead, permanently incapacitated, or of unknown whereabouts, and whether there was any compelling reason to believe that granting the visa would not be in the best interests of the applicants.

The Tribunal found that the applicants, at the time of application and at the time of the decision, were indeed orphan relatives of their sister, who was an Australian permanent resident. Evidence established their sibling relationship, and while some applicants had turned 18 by the time of the decision, the Tribunal found they continued to satisfy the criterion because this was only due to their age. There was no evidence of them having a spouse or de facto partner. The Tribunal concluded that the applicants met the criteria under cl 117.211 and cl 117.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with the direction that the visa applicants met the specified criteria for a Subclass 117 (Orphan Relative) visa.