Ahmed (Migration)

This matter concerned an appeal by the visa applicants against a decision regarding their applications for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative). The review applicant, who is the maternal aunt of the visa applicants and an Australian citizen, sought to have the applications reconsidered. The core dispute revolved around whether the visa applicants met the definition of an "orphan relative" as defined 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. This involved assessing whether they 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 the visa applicants could not be cared for by either parent due to their death, permanent incapacitation, or unknown whereabouts, and whether granting the visa would be in the best interests of the applicants.

The Tribunal found that the visa applicants met the definition of an orphan relative. Evidence, including passports and other documentation, supported their ages, confirming they were under 18 at the time of application and that at least one remained under 18 at the time of the decision. There was no evidence to suggest they had or had ever had a spouse or de facto partner. The Tribunal also accepted that the visa applicants were relatives of the review applicant, their maternal aunt. Furthermore, the Tribunal was satisfied that the parents of the visa applicants were either deceased or their whereabouts were unknown, fulfilling the requirement that they could not be cared for by either parent.

Consequently, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration by the Minister. The direction was that both visa applicants met the criteria specified in cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.