Desta (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically a Subclass 117 (Orphan Relative) visa. The applicants were nieces and nephews of Ms Alemitu Midesqa Desta, an Australian citizen. The core of the dispute revolved around whether the applicants qualified as "orphan relatives" under the Migration Regulations 1994, given the circumstances of their parents. The decision was made by a Member of the Tribunal.

The Tribunal was required to determine if the visa applicants met the criteria set out in clause 117.211 of Schedule 2 to the Regulations, which defines an "orphan relative" of an Australian relative. This involved assessing whether the applicants had not turned 18, did not have a spouse or de facto partner, and were a relative of the Australian sponsor. Crucially, the Tribunal also had to consider whether the applicants could not be cared for by either parent because each parent was either dead, permanently incapacitated, or of unknown whereabouts, and whether granting the visa would be in the best interests of the applicants.

The Tribunal found that the applicants were indeed relatives of the Australian sponsor, Ms Desta, who was their maternal aunt. It was established that all applicants were under 18 at the time of application and continued to meet this criterion, with one applicant having turned 18 due to the passage of time during the review process, which the Tribunal accepted. The applicants also did not have spouses or de facto partners. The Tribunal accepted that the father was permanently incapacitated and the whereabouts of the mother were unknown, thus satisfying the definition of an orphan relative.

Consequently, the Tribunal remitted the applications for Child (Migrant) (Class AH) visas for reconsideration by the Minister. The remittal was with the direction that the applicants met the criteria under clause 117.211 of Schedule 2 to the Regulations, allowing for the assessment of any remaining criteria for the visa.