Hashi (Migration)

The Administrative Appeals Tribunal considered a Subclass 117 (Orphan Relative) visa application made by a young woman who claimed to be the half-sister of an Australian citizen. The core of the dispute revolved around whether the visa applicant met the definition of an "orphan relative" as defined by the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicant was an orphan relative of an Australian relative at the time of her application and at the time of the decision, and whether she had turned 18 prior to the application. The definition of an orphan relative under regulation 1.14 requires the applicant to be under 18, not have a spouse or de facto partner, and be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen. Crucially, it also requires that both parents are deceased, permanently incapacitated, or their whereabouts are unknown, and that granting the visa would be in the applicant's best interests.

The Tribunal found that the visa applicant met the criteria of being an orphan relative of an Australian relative at both the time of application and the time of the decision, notwithstanding that she had turned 18 by the time of the decision. While concerns were raised about her age, the Tribunal noted the consistency of her stated date of birth across various authorities, including her registration with the UNHCR as an unaccompanied child. The Tribunal acknowledged a Departmental assessment that she was "highly likely" to be over 18 at the time of interview, but also noted that her life experiences might contribute to her appearing more mature than her claimed age.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the visa applicant met the criteria under clauses 117.211 and 117.221 of Schedule 2 to the Regulations.