Gaar (Migration)

This matter concerned applications for Child (Migrant) (Class AH) visas, specifically Subclass 117 (Orphan Relative) visas. The applicants sought review of a decision concerning their eligibility for these visas. The Tribunal was required to determine whether the applicants met the criteria for the grant of an Orphan Relative visa, considering their age, marital status, and relationship to an Australian relative, as well as the circumstances of their parents.

The primary legal issue was whether the applicants qualified as "orphan relatives" under the Migration Regulations 1994. This involved assessing whether they had not turned 18, did not have a spouse or de facto partner, and were relatives of an Australian citizen, permanent resident, or eligible New Zealand citizen. Crucially, the Tribunal had to consider whether the applicants could not be cared for by either parent because each parent was 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 met the criteria of not having a spouse or de facto partner, and being relatives of an Australian relative. However, it noted that the first-named applicant had turned 18 by the time of the decision, meaning she no longer met the age requirement under regulation 1.14(a)(i) at that point. Despite this, the Tribunal accepted evidence that the applicants had no surviving parents, satisfying the requirement under regulation 1.14(b). Given these findings, the Tribunal remitted the applications for reconsideration by the Minister, directing that the first-named applicant met the criteria under clauses 117.211 and 117.221 of Schedule 2 to the Regulations.