ALSAWAFI (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101. The applicant had provided a low-quality copy of their father's death certificate to the Department, and despite a request for a higher-quality copy, no response was received. The decision under review was made by the Department, and the matter came before the Tribunal for reconsideration.

The primary legal issues before the Tribunal were whether the delegate had correctly assessed the criteria for the visa, particularly clause 101.213 of Schedule 2, which relates to applicants over 18 years of age. This clause requires applicants to meet certain conditions regarding their relationship status, engagement in full-time work, or undertaking a full-time course of study. The Tribunal also considered the relevance of section 62(1) of the Migration Act 1958 (Cth), which allows the Minister to make a decision without obtaining further information if an applicant fails to provide requested information.

The Tribunal reasoned that section 62(1) is a procedural discretion and does not affect the assessment of the Schedule 2 criteria. It was unclear how the applicant's failure to provide a higher-quality death certificate was relevant to the delegate's assessment of clause 101.213, as this clause pertains to the applicant's relationship status, work, and study, not the death of a parent. While the delegate's reasons for finding clause 101.213, 102.211, and 117.211 not met were unclear, the Tribunal could conduct a merits review. The Tribunal was satisfied that the applicant met clause 101.213(1)(a) as they were not engaged to be married and did not have a spouse or de facto partner at the time of application.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration by the Minister. The Tribunal directed that the visa applicant meets criterion 101.213(1)(a) of Schedule 2 to the Regulations.