Ahmed (Migration)

This matter concerned an appeal by Ibrahim (the applicant) against a decision not to grant him a Child (Migrant) (Class AH) Subclass 117 (Orphan Relative) visa. The applicant's aunt, Mrs Ahmed, an Australian relative, sponsored the application. The primary issue before the Tribunal was whether the applicant met the criteria for an orphan relative visa, specifically concerning his age at the time of application.

The Tribunal was required to determine if the applicant qualified as an "orphan relative" under the Migration Regulations 1994. This involved assessing whether the applicant had turned 18 at the time of the visa application, as stipulated by regulation 1.14(a)(i). The applicant's date of birth was recorded as 1 January 1997, and the Department's records indicated the application was stamped and received on 4 March 2015. The applicant's aunt contended the application was lodged earlier, in July 2014, providing a receipt for the application fee paid on 30 June 2014.

The Tribunal considered conflicting accounts regarding the lodgement date. While the aunt claimed the application was handed to a security guard at the Australian High Commission in Nairobi in August 2014, the applicant stated he was informed he had attended the wrong building. The Tribunal found the applicant's account more credible, noting the distinct locations of the High Commission and the visa application centre, and that the High Commission's consular section does not process visa applications. Consequently, the Tribunal was not satisfied that the application was lodged prior to 4 March 2015. As the applicant had turned 18 by this date, he failed to meet the age requirement under regulation 1.14(a)(i), and therefore did not satisfy the criteria for an orphan relative visa under clause 117.211.

The Tribunal affirmed the decision not to grant the visa. It noted that as the applicant did not meet the eligibility criteria, there was no discretion to consider additional circumstances. The applicant's aunt was advised she could seek the intervention of the Minister if she believed exceptional circumstances warranted a different decision.