Davids (Migration)

The applicant sought review of a decision not to grant her a Child (Residence) (Class BT) visa. The applicant, who was over 18 years of age, had been adopted by her paternal grandparents. The core of the dispute concerned whether the applicant met the eligibility criteria for the visa, particularly in relation to the definition of an "orphan relative" and the age requirements for the visa subclass. The applicant also requested that the matter be referred to the Minister for potential intervention under section 351 of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the applicant met the criteria for a Subclass 802 visa, specifically cl.802.213(1)(a), and for a Subclass 837 visa, specifically cl.837.214(a)(i) which requires the applicant to meet the definition of an "orphan relative" as defined in r.1.14. The Tribunal also had to consider whether the circumstances warranted a referral to the Minister for discretionary intervention.

The Tribunal found that the applicant did not meet the criteria for either the Subclass 802 or Subclass 837 visa, as she was over 18 at the time of the adoption order and visa application, and therefore did not meet the definition of an "orphan relative". Despite these findings, the Tribunal was impressed by the credibility of the witnesses and accepted the validity of the oral evidence and submissions presented. Considering the unique and exceptional circumstances, including the applicant's financial dependence on her adoptive parents, the death of her former carer, and alleged errors by previous legal representatives, the Tribunal concluded that it would be appropriate to refer the matter to the Minister for consideration of intervention under s.351 of the Act.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa. However, the Tribunal made a referral to the Minister for intervention, acknowledging the strong compassionate circumstances presented.