Habtu (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 117 (Orphan Relative), made by a visa applicant in relation to whom the review applicant was seeking to establish a familial relationship. The core of the dispute concerned whether the visa applicant qualified as an "orphan relative" under the relevant visa subclass criteria, specifically whether the applicant could not be cared for by a parent due to the mother's death and the father's inability to be located or provide care.

The Tribunal was required to determine whether the visa applicant met the definition of a "relative" for the purposes of the Orphan Relative visa subclass, and crucially, whether the applicant could not be cared for by a parent. Additionally, the Tribunal had to consider whether the grant of the visa would be in the best interests of the child, a mandatory consideration for this visa subclass.

In its reasoning, the Tribunal found that there was consistent evidence regarding the identity of the applicant and the review applicant, establishing the necessary familial relationship. The Tribunal was satisfied that the visa applicant could not be cared for by a parent, given the confirmed death of the mother and the unsuccessful attempts to locate or ascertain the capacity of the father to provide care. Furthermore, the Tribunal found no reason to suspect that granting the visa would be adverse to the best interests of the child. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the visa applicant met the criteria under clauses 117.211 and 117.221 of Schedule 2 to the Regulations.