Hassan (Migration)

This matter concerned an appeal before the Migration Review Tribunal regarding a Subclass 117 (Orphan Relative) visa application. The applicant sought to be recognised as an orphan relative of an Australian relative. The Tribunal was required to determine whether the visa applicant met the criteria for the visa, specifically whether they were an orphan relative of an Australian relative at the time of application and at the time of the decision, and whether they could not be cared for by either parent.

The Tribunal considered the definition of an "orphan relative" under regulation 1.14 of the Migration Regulations 1994, which requires that the applicant be under 18, not have a spouse or de facto partner, be a relative of an Australian citizen, permanent resident, or eligible New Zealand citizen, and be unable to be cared for by either parent due to their death, permanent incapacity, or unknown whereabouts. The Tribunal also noted that the applicant must continue to satisfy this criterion at the time of decision, or not do so only because they have turned 18, as per regulation 117.221. The Tribunal found that the applicant had turned 18, and therefore the primary criterion of being an orphan relative was not met. Furthermore, the Tribunal placed limited weight on a statutory declaration submitted by the applicant, as it was unsigned and dated significantly prior to its submission, and no further physical evidence was provided to substantiate claims of parental death or permanent incapacity.

Ultimately, the Tribunal concluded that the criteria for the grant of a Subclass 117 visa were not met. The Tribunal affirmed the decision not to grant the visa.