Agbahowe (Migration)

This matter concerned an appeal before the Migration Review Tribunal regarding a Subclass 117 (Orphan Relative) visa application. The applicant, Solomon Idirhe, sought the visa on the basis that he was the orphan relative of Ms Faith Orovbo Agbahowe, who claimed to be his half-sister and an Australian relative. The core of the dispute revolved around whether the applicant met the definition of an "orphan relative" and an "Australian relative" as prescribed by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant was an orphan relative of an Australian relative, as defined by clause 117.211 of Schedule 2 to the Regulations, and if this criterion continued to be met at the time of the decision, pursuant to clause 117.221. Specifically, the Tribunal had to consider the definition of "orphan relative" under regulation 1.14, which includes requirements that the applicant has not turned 18, does not have a spouse or de facto partner, is a relative of the Australian citizen, permanent resident, or eligible New Zealand citizen, and cannot be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also needed to assess if there was a compelling reason to believe that granting the visa would not be in the best interests of the applicant.

The Tribunal found that the applicant, born on 21 April 2000, had not turned 18 at the time of application and continued to meet this criterion at the time of the decision. It was also satisfied that the applicant did not have a spouse or de facto partner. Crucially, the Tribunal accepted that the applicant and the sponsor shared a common mother, establishing them as relatives. While the applicant's father's whereabouts were initially stated as unknown, a death certificate was provided for him, and a death certificate was also provided for the applicant's mother, indicating that both parents were deceased. Consequently, the Tribunal concluded that the applicant met the criteria for being an orphan relative of an Australian relative at the time of application and continued to meet this criterion at the time of the decision.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the visa applicant met the criteria under clauses 117.211 and 117.221 of Schedule 2 to the Regulations.