Arbakoy (Migration)

This matter concerned an application for review of a decision regarding Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative) visas. The review applicant, Mr Abudkadir Aliyow Arbakoy, is the biological uncle of the visa applicants and an Australian relative. The core of the dispute revolved around whether the visa applicants met the definition of "orphan relative" as defined in the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicants were orphan relatives of an Australian relative at the time of their application and at the time of the decision. This involved assessing whether the applicants met the criteria outlined in clause 117.211 and clause 117.221 of Schedule 2 to the Regulations, which in turn required consideration of the definition of "orphan relative" under regulation 1.14. Specifically, the Tribunal needed to ascertain if the applicants had not turned 18, did not have a spouse or de facto partner, were a relative of the Australian relative, and could not be cared for by either parent due to their death, permanent incapacitation, or unknown whereabouts.

The Tribunal found that the biological relationship between the review applicant and the visa applicants had been established, including through DNA testing. It accepted the evidence presented regarding the applicants' ages, supported by their passports and identity cards, indicating they were under 18 at the time of application and remained so at the time of the decision. Furthermore, the Tribunal accepted the consistent declarations that the applicants were single and unmarried. Crucially, the Tribunal concluded that the visa applicants were orphan relatives of an Australian relative at both relevant times, satisfying the criteria under cl.117.211(a) and cl.117.221.

Given these findings, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration by the Minister. The direction was that the first named visa applicant met the criteria specified in cl.117.211 and cl.117.221 of Schedule 2 to the Regulations.