Embiza (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Child (Migrant) (Class AH) visa, Subclass 101. The dispute arose because the sponsor, identified as Mr Tekea Girmay Embiza, did not meet the requirements of being an Australian citizen or the holder of a permanent visa, as stipulated by criterion cl.101.211. Instead, the sponsor held a Subclass 444 (Special Category) visa, which is a temporary visa. The Tribunal was therefore required to assess whether the sponsor qualified as an "eligible New Zealand citizen" under Regulation 1.04 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the sponsor, Mr Embiza, met the definition of an "eligible New Zealand citizen" as defined in Regulation 1.04. This definition requires that the New Zealand citizen, at the time of their last entry to Australia, would have satisfied certain public interest criteria, and additionally, either was in Australia on 26 February 2001 as a holder of a Subclass 444 visa, or had held such a visa for a cumulative period of at least one year in the two years prior to that date, or possessed a certificate issued under the Social Security Act 1991 stating they were residing in Australia on a particular date.

The Tribunal's reasoning focused on the sponsor's immigration history. It was established that Mr Embiza arrived in Australia on 22 June 2002 and had made multiple subsequent entries and departures. Crucially, he was not in Australia on 26 February 2001, nor had he accumulated the required one year of presence in Australia as a Subclass 444 visa holder in the two years preceding that date. Furthermore, there was no indication that he held a certificate under the Social Security Act 1991. Consequently, the Tribunal concluded that Mr Embiza did not meet the definition of an eligible New Zealand citizen under Regulation 1.04.

As a result of the sponsor not meeting the criteria for an eligible New Zealand citizen, and therefore not satisfying the requirements of cl.101.211 for the Child (Migrant) visa, the Tribunal affirmed the decision not to grant the visa. The Tribunal advised the sponsor to seek legal advice regarding his options.