Dador (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative). The applicant sought this visa as an orphan relative of an Australian relative. The core dispute revolved around whether the applicant met the criteria for being an orphan relative, particularly in light of her age at the time of application and at the time of the Tribunal's decision.

The Tribunal was required to determine if the visa applicant was an orphan relative of an Australian relative at the time the visa application was made, as per clause 117.211(a) of the Migration Regulations 1994. Additionally, the Tribunal considered it appropriate to make findings regarding clause 117.221, which relates to the criteria at the time of the decision, specifically concerning the applicant's age. The central legal issue was whether the applicant, who had since turned 18, met the age requirement of not having turned 18 at the time of the decision, or if she met an alternative criterion under clause 117.221(b) due to her parents' circumstances.

The Tribunal found that at the time of the visa application on 5 January 2016, the applicant was an orphan relative of an Australian relative, thus satisfying clause 117.211(a). This finding was based on documentary evidence, including passport bio-pages and an age assessment certificate, as well as a letter from the applicant's former headmaster, which indicated she was under 18 at the time of application. The Tribunal also found that while the applicant no longer met the criterion of not having turned 18 under clause 117.221(a) because she had since reached that age, she did meet the criterion under clause 117.221(b), which allows for an applicant to be cared for by neither parent due to death, permanent incapacity, or unknown whereabouts.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), for reconsideration. The direction was that the visa applicant met the criteria specified in clause 117.211 and clause 117.221 of Schedule 2 to the Migration Regulations 1994.