Chiu (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Child (Residence) (Class BT) visa, specifically a Subclass 837 (Orphan relative) visa. The applicant sought to establish that he was an orphan relative of an Australian citizen, his uncle. The Tribunal was required to determine whether the applicant met the criteria for an orphan relative and whether the case warranted referral for Ministerial intervention.

The primary legal issues before the Tribunal were whether the applicant qualified as an "orphan relative" of an Australian relative at the time of his visa application and at the time of the decision, and whether the Tribunal should refer the case for Ministerial intervention. To be considered an orphan relative under the Migration Regulations 1994, an applicant must generally be under 18 years of age, not have a spouse or de facto partner, be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and be unable to be cared for by either parent because they are dead, permanently incapacitated, or of unknown whereabouts.

The Tribunal found that the applicant did not meet the definition of an orphan relative. Specifically, the applicant was 24 years old at the time of application and 26 at the time of the decision, failing the age requirement of not having turned 18. Furthermore, the Tribunal determined that the applicant's mother was alive and residing in China, and there was no evidence that she was dead, permanently incapacitated, or of unknown whereabouts. The applicant's assertion that his mother intended to return to Australia indicated she was capable of care. Consequently, the Tribunal affirmed the decision not to grant the visa. The applicant was advised that he could lodge an application for Ministerial intervention directly with the Department.