El Roumi (Migration)

The applicant, El Roumi, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the refusal to grant her a Subclass 117 (Orphan Relative) visa. The core of the dispute concerned whether the applicant met the eligibility criteria for this visa subclass, particularly in light of her age at the time of application and the circumstances surrounding her guardianship.

The primary legal issue before the court was whether the applicant satisfied the requirements for a Subclass 117 visa, specifically the age requirement and the dependency and guardianship provisions. The court also considered whether there was any provision for waiving the age requirement based on the applicant's alleged incapacity or need for assistance with daily living and financial dependency, and the validity of an informal assignment of guardianship by her mother.

The Senior Member of the Tribunal found that the applicant did not meet the criteria for the Subclass 117 visa. The Tribunal noted that the applicant was over 18 years of age when the application was made, and there was no provision within the relevant regulations to waive this requirement on the basis of incapacity or dependency. Furthermore, the Tribunal determined that an informal assignment of guardianship by the applicant's mother did not satisfy the legal requirements for establishing guardianship for the purposes of the visa subclass. The Tribunal also indicated that a request for referral for ministerial intervention was not accepted, as the applicant could apply directly to the Minister.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Migrant) (Class AH) visa, as the criteria for the visa were not met.